IN THE CASE OF:	  

		BOARD DATE:	  3 September 2015

		DOCKET NUMBER:  AR20150001175 


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 discharge (GD).

2.  The applicant states the mistake he made during his youth is still affecting him.  He has changed his life and now has two children, one who has completed a tour of active duty, and the other is still serving.  He is asking that the mistake he made in 1978 be forgiven.  He is struggling financially and needs Department of Veterans Affairs (VA) health care.

3.  The applicant provides no additional supporting documentation.

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 12 January 1977, completed training, and was awarded the military occupational specialty 13B (Cannon Crewman.

3.  He received nonjudicial punishment under Article 15, Uniform Code of Military Justice, as follows —

* 10 January 1978, for failing to go at the time prescribed to his appointed place of duty on two occasions
* 8 August 1978, for failing to go to his place of duty
* 31 October 1978, for failing  to go to his place of duty

4.  The applicant was confined by civilian authorities from 28 July 1978 through 2 August 1978.  It was reported that he was tried by civilian authorities and paid a fine before being released to military authorities.  He was again arrested by civilian authorities and placed in civilian confinement from 20 December 1978 through 3 January 1979.  The reason for these confinements is not shown in the available records.

5.  Upon release from civilian confinement he was placed in military confinement. The record contains no information as to the reason for and duration of the military confinement. 

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that he was guilty of the charges or lesser included charges that could also result in a punitive discharge and that, if the request was accepted, he could receive a discharge UOTHC and be furnished a UOTHC Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

7.  On 16 January 1979, the discharge authority approved the discharge request.

8.  The applicant was discharged with a UOTHC on 24 January 1979.  He had 1 year, 11 months, and 22 days of net active service with 22 days of lost time. 

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7b provides that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is 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 (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.  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 and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.






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)                                         AR20150001175



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ABCMR Record of Proceedings (cont)                                         AR20150001175



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