IN THE CASE OF:	  

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140008666 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  The applicant states he is a different person than he was during his period of service in the Army.  He made some mistakes that he regrets.  He was discharged for the good of the service in lieu of a court-martial.  However, he was never given the option and he would have chosen a court-martial if he had been given that option.  He did not really want to be discharged from the military.  He was Regular Army (RA) and wanted to remain in the Army.  He was very young and did not really understand what was happening to him.  Every day he regrets leaving the military because he enjoyed that life.  His is a different man and he would like to have another chance to prove that.

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

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the RA, in pay grade E-1, on 22 June 1982, for 4 years.  At the time of his enlistment, he was 17 years, 10 months, and 25 days of age.  He was awarded military occupational specialty 11B (infantryman).  He served in Germany from 23 November 1982 through 27 July 1983.  He was advanced to pay grade E-2 on 1 February 1983.  

3.  His record is void of the complete facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  A DA Form 4187 (Personnel Action), dated 2 May 1983, which shows flagging action was initiated against him to block his advancement to pay grade E-3 due to his duty performance not warranting advancement at that time.

   b.  A DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 21 June 1983, which shows he was being eliminated under chapter 10.

   c.  Orders Number 203-401, dated 22 July 1983, reducing him to pay grade E-1 effective 6 July 1983.

   d.  A DD Form 214 which shows he was discharged in pay grade E-1 on 28 July 1983, under the provisions of Army Regulation 635-200 (Personnel Separations, Enlisted Separations), chapter 10.  He was credited with completing 1 year, 1 month, and 7 days of net active service.  His service was characterized as UOTHC.  

4.  On 5 December 1997, the Army Discharge Review Board denied his request for an upgrade of his discharge.

5.  He provides three character reference letters wherein the individuals attested that the applicant regretted the incident, especially missed serving in the Army, and he had worked hard to build his character to be the responsible and respectful person he had become.
6.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances surrounding his discharge; however, it appears after charges were preferred against and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  

2.  His contention that he was young at the time was carefully considered.  He was 17 years, 10 months, and 25 days of age at the time of his enlistment in the RA.  It appears, he was over 18 years of age at the onset of his misconduct.  There is no evidence he was any less mature than any other Soldier who successfully completed their period of enlistment.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his UOTHC discharge.  The evidence shows his misconduct during his period of service diminished the quality of his service below that meriting a general discharge.

4.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the 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)                                         AR20140008666





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ABCMR Record of Proceedings (cont)                                         AR20140008666



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