IN THE CASE OF: 

		BOARD DATE: 21 July 2015

		DOCKET NUMBER:  AR20140021314 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his under other than honorable conditions (UOTHC) discharge to a general or an honorable discharge.

2.  The applicant states he believes that the punishment was too severe for the "crime" committed.  He went home to be married.  He turned himself in when he realized that going absent without leave (AWOL) was wrong.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, and has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 24 August 1981.  He held military occupational specialty 19E (M48-M60 A1/A3 Armor Crewman).  

3.  His DA Form 2-1 (Personnel Qualification Record) shows he served in Germany from 14 April 1982 until he was dropped from the rolls (DFR) on 
28 March 1984.  He was awarded the Army Service Ribbon, Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar, and the Marksman Marksmanship Qualification Badge with Pistol Bar.  The highest rank he attained was specialist four/E-4.  

4.  His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 
29 November 1983 for –

* wrongfully possessing marijuana
* violating a lawful general regulation by possessing drug abuse paraphernalia
* violating a lawful general regulation by possessing two ration cards in the name of the same person
* being drunk and disorderly 
* cause a breach of the peace by wrongfully and willfully disturbing another Soldier and provoking him to a fist fight
* failing to go at the time prescribed to his appointed place of duty 

5.  On 30 July 1984, charges were preferred against the applicant for being AWOL from 27 February 1984 to 27 June 1984. 

6.  He consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses, or a lesser included offense, which authorized a bad conduct or dishonorable discharge.  He also acknowledged he understood he might receive a discharge under conditions other than honorable, which would deprive him of many or all Army benefits, and he might be ineligible for veteran’s benefits administered by the Veterans Administration.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He submitted a statement in his own behalf in which he stated he felt his wife and family needed him more than the Army does.  He indicated he had work awaiting his arrival home.

7.  The separation authority approved the discharge request and directed issuance of a UOTHC Discharge Certificate.

8.  On 4 September 1984, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He had completed 2 years, 8 months, and 11 days of active duty with time lost from 27 February through 26 June 1984.  

9.  There is no evidence he requested an upgrade of his discharge from the Army Discharge Review Board.

10.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided insufficient evidence to support his request for an upgrade of his UOTHC discharge.

2.  He was not punished for going AWOL.  Although court-martial charges were preferred, he requested discharge in lieu of court-martial.

3.  His request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was appropriately characterized by the nature of his offenses and the circumstances of his separation and does not warrant an upgrade to either an honorable or a general discharge.

4.  In view of the foregoing, his request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _x______   ___
               CHAIRPERSON


I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20140021314



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