IN THE CASE OF:	 

		BOARD DATE:	  17 September 2015

		DOCKET NUMBER:  AR20150000599 


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 (UOTHC) discharge. 

2.  The applicant states, in effect:

     a.  He served with Headquarters and Headquarters Company, 2nd Battalion, 75th Ranger Battalion.  He served with the first anti-terrorist unit in this country.  He is jump and jungle qualified.  He completed 94B (Food Service Specialist) school.  He attended Pre-Ranger school and the Ranger Indoctrination Program. 

     b.  When he left the Army he was not thinking about his future.  He volunteered for and completed many hazardous schools and training.  He was a good Soldier and was ready to do anything at that time for his country.   

3.  The applicant does not provide any 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 1 September 1978.  After completing initial entry training, he was awarded military occupational specialty 94B.  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  On 15 February 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being incapacitated for the proper performance of his duties due to previous indulgence in alcohol.

4.  A DD Form 458 (Charge Sheet), dated 22 August 1980, shows he was charged with being absent without leave (AWOL) from 7 April 1970 to 14 August 1980.

5.  A DD Form 3822-R (Report of Medical Status Evaluation), dated                   22 August 1980, showed:

* his behavior was normal
* he was fully alert
* his mood was unremarkable
* his thinking process was clear
* his thought content was normal
* his memory was good
* he had the mental capacity to understand and participate in the proceedings
* he was mentally responsible  

6.  On 25 August 1980, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.

7.  After consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).
.
     a.  He acknowledged that:

* he could request discharge for the good of the service because a charge had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charge against him or a lesser-included offense therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation for he had no desire to perform further military service
* he understood he could be issued an UOTHC discharge 
* as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the Veterans Administration
* 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 UOTHC discharge

     b.  He indicated he would submit statements in his own behalf.  

8.  In his statement regarding his discharge he stated:

     a.  He was 20 years old and had completed 12 years of school.  He joined the Regular Army and served as a 94B.  He joined the Army for the challenge of the Rangers.  He spent 17.5 months with the Rangers and got kicked out like he was nothing.  He was burned so bad that it messed up his personal and military life.  He believed it was unfair.

    b.  He saw regular straight leg units and he was disgusted.  There were not any Army benefits available unless one remained in the service for 20 years.  He wanted out because there were too many halfwits and too much corruption.  

9.  On 19 September 1980, an authorized official approved his request and directed that he receive an UOTHC discharge and reduction to the lowest enlisted grade. 

10.  On 24 October 1980, he was discharged accordingly.  His DD Form 214 for this period of service shows he completed 1 years, 9 months, and 5 days of net active service for this period, with 142 days of lost time.  He was discharged in the rank/grade of private/E-1.  

11.  There is no indication he petitioned the Army Discharge Review Board for a review 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 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 provides that an honorable discharge (HD) 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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by upgrading his UOTHC discharge was carefully considered and determined to lack merit.

2.  He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

3.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He could have elected a trial if he believed there were extenuating circumstances surrounding his AWOL status.

4.  Based on his lengthy period of AWOL and his acceptance of NJP, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  The UOTHC discharge was appropriate.
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)                                         AR20150000599





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ABCMR Record of Proceedings (cont)                                         AR20150000599



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