IN THE CASE OF:	   

		BOARD DATE:	  20 August 2015

		DOCKET NUMBER:  AR20150000545 


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  He states that he only signed the discharge because he was afraid.

3.  He provides his:

* DD Form 214 (Report of Separation from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* three DA Forms 2627 (Record of Proceedings under Article 15, UCMJ (Uniformed Code of Military Justice))

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.  On 15 August 1975 the applicant enlisted in the Regular Army.  He completed initial entry training and was awarded military occupational specialty 94B (food service specialist).

3.  A DD Form 458 (Charge Sheet) dated 1 March 1977 shows he was charged under the UCMJ with:

* stealing $42.00 from an individual on 16 February 1977
* disobeying the lawful order of a commissioned officer on 16 February 1977
* being absent without leave (AWOL) from 20 – 22 February 1977
* being AWOL from 25 – 28 February 1977

4.  On 7 March 1977, the applicant consulted with counsel who advised him of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

5.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  	

	a.  He acknowledged that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he understood he could be discharged under other than honorable conditions 
* as a result of such a discharge, he would be deprived of many or all Army benefits and would be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

	b.  He indicated he would not submit a statement in his own behalf.

6.  Upon review of his request for discharge, his immediate and intermediate commanders recommended the applicant be tried by special court-martial empowered to adjudge a bad conduct discharge.

7.  On 8 February 1977, the applicant’s battalion commander noted that during a recent interview the applicant indicated that he felt the chapter 10 action was his best alternative.  The battalion commander recommended the applicant’s request for discharge be approved and that he be discharged under other than honorable conditions.

8.  On 18 March 1977, the separation authority approved the applicant's request and directed his discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trail by court-marital with an under other than honorable conditions characterization of service.  His DD Form 214 shows that on 
28 March 1977, he was discharged in accordance with Army Regulation 635-200, chapter 16 (sic), with his service characterized as under other than honorable conditions.  He completed 1 year, 7 months, and 14 days of total active service.

9.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB denied his request on 21 March 1979, but modified his record to show he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trail by court-martial.  The ADRB issued a DD Form 215 to show this correction.  

10.  As evidence to support his application he provided three Article 15’s which show he accepted nonjudicial punishment under the UCMJ for failing to go to his place of duty, on 29 February 1976; disrespecting a commissioned officer on 3 December 1976; and disobeying a lawful order to clean his room on 16 December 1976.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge normally was furnished an individual who was discharged for the good of the Service.  

	b.  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.  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 available evidence does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  

3.  His contention that he only requested a discharge because he was afraid is not supported by the available evidence; therefore, it must be presumed that all requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.  Further, his record shows he was well advised and fully aware of the consequences of his decision.  

4.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient evidentiary basis upon which to upgrade his under other than honorable conditions discharge to an honorable or a general discharge.  

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)                                         AR20150000545



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ABCMR Record of Proceedings (cont)                                         AR20150000545



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