IN THE CASE OF:	  

		BOARD DATE:	 21 July 2015

		DOCKET NUMBER:  AR20140021421 


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 that his discharge under conditions other than honorable be upgraded to honorable.

2.  The applicant states he acted in a reckless manner due to the unauthorized change of his military occupational specialty (MOS) and the passing of his mother at age 36 due to breast cancer.  Over the past 33 years, he has been living with shame and regret because of his actions while he was in the U.S. Army; however, he is currently making a positive contribution to society.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) 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, 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 13 June 1978.  His DA Form 3286-18 (Statements for Enlistment U.S. Army Special Unit Enlistment Option) shows he enlisted for assignment to U.S. Army Europe and for training in MOS 27G (Chaparral and Redeye Repairer).

3.  Section III, paragraph 1h of the DA Form 3286-18 includes the following statement:  "In the event I fail to meet any of the established prerequisites for this option or become medically or otherwise disqualified for training or duty in my designated MOS, I will be trained and assigned in accordance with the needs of the Army and will be required to complete the term of service for which I enlisted."

4.  His DA Form 2-1 (Personnel Qualification Record-Part II) shows in item 
17 (Civilian Education and Military Schools) that he attended 4 weeks of training in MOS 27G but that he did not complete the required training.  Item 17 also shows he attended 6 weeks of training in MOS 13 (Cannon Crewmember) and that he completed the required training.

5.  The facts and circumstances that prompted the change in MOS training are not available.

6.  He accepted nonjudicial punishment (NJP) on:

	a.  14 June 1979, for behaving with disrespect towards his superior commissioned officer, disobeying a lawful order from his superior commissioned officer, violating a lawful general regulation, and for being drunk and disorderly;

	b.  30 July 1979, for unlawfully striking another Soldier on the nose with his hand; and 

	c.  25 September 1979, for failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order from his superior noncommissioned officer (NCO), damaging an Army vehicle through neglect, and leaving his place of duty without authority.

7.  A DA Form 4126-R dated 21 May 1980 shows he was counseled on several occasions for acts of misconduct that include:

* fighting with other Soldiers
* failure to be at his place of duty
* threatening an NCO
* failure to follow orders
* detained for assault
* missing his unit's field training exercise 

8.  His records are void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, his records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for his separation.

9.  His DD Form 214 shows he was discharged on 21 January 1981 in the rank/grade of private (PV1)/E-1 after completing 2 years, 7 months, and 9 days of net active service this period.  It also shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, due to conduct triable by court-martial, and his service was characterized as under conditions other than honorable.

10.  There is no evidence in his military records showing that the change in MOS training adversely impacted his ability to serve or that family issues were the proximate cause of his repeated acts of misconduct.

11.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.	

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who commits 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 at any time after court-martial charges are preferred and must include the individual's admission of guilt.  Commanders will ensure that an individual is not coerced into submitting a request for discharge for the good of the service.  Consulting counsel will advise the member concerning the elements of the offense or offenses for which he or she is  charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally issued to an individual who is discharged for the good of the service.

	b.  Paragraph 3-7a provides that 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 provides that 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's request for an upgrade of his under conditions other than honorable discharge to honorable has been carefully considered.

2.  The applicant's records are void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt of the charges and waived his opportunity to appear before a court-martial.

4.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed the character of his discharge accurately reflects his overall record of service.

5.  His record of indiscipline includes NJP on three occasions, several negative counseling sessions for numerous acts of misconduct, and apparently court-martial charges.  Based on the seriousness of his offenses, and in view of the fact that it appears he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

6.  His arguments were noted and considered; however, he has failed to show that his separation processing and/or the character of service he received were in error or unjust.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 that 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)                                         AR20140021421



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ABCMR Record of Proceedings (cont)                                         AR20140021421



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