BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20150001342 


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:

   a.  he believes he received an UOTHC discharge as a result of receiving basic enlisted quarters (BEQ) payments;
   
   b.  he was divorced and stationed in Germany where his children were supposed to accompany him;
   
   c.  while receiving BEQ, his command notified him his ex-spouse decided not to send his children to live with him;
   
   d.  charges were never brought against him and he was never informed he would receive a UOTHC discharge;
   
   e.  the UOTHC discharge limits his access to veterans’ healthcare and benefits, where now at his age, healthcare is not affordable; and 
   
   f.  upon his discharge from the Army, he was employed with the Department of Judiciary, State of Hawaii, from which he is now retired, "serving God, country, and service."
   

3.  The applicant provides a self-authored statement.

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 19 April 1977.  He was trained in and awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in Item 18 (Appointments and Reductions) that he was promoted to sergeant/E-5 on 7 November 1974, and this was the highest rank he attained while serving on active duty.  Item 21 (Time Lost Section 972, Title 10, United States Code) shows he was reported absent without leave for 1 day from 14 April to 15 April 1980.

4.  His official military personnel file includes two DA Forms 268 (Report of Suspension of Favorable Personnel Actions), both dated 8 April 1981.  These forms show the applicant was under investigation by the Criminal Investigation Division and that he was pending a special court martial.

5.  On 12 August 1981, the applicant acknowledged the charges preferred against him for violating the following Articles of the Uniform Code of Military Justice (UCMJ):

* Article 121 – larceny of property
* Article 134 – false swearing and dishonorably failing to pay debt

6.  Having consulted with legal counsel and having been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights available to him, he voluntarily requested 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.

7.  In his request for discharge he acknowledged he understood that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that he understood he could face substantial prejudice in civilian life because of a UOTHC discharge.  He further elected not to submit a statement in his own behalf.

8.  On 24 August 1981, after having considered the applicant's request, the separation authority approved his request and directed that he receive a UOTHC discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

9.  On 6 October 1981, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 4 years, 5 months, and 18 days of total active service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  

11.  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 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 discharge (HD) or general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7a provides that an 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 GD 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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for larceny, false swearing, and his failure to pay a debt.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His service did not support a GD or an HD at the time of his discharge, nor would it be appropriate to upgrade his discharge now.

3.  The applicant's desire to obtain veterans' medical benefits is not a basis for upgrading a properly-issued discharge.

4.  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)                                         AR20150001342





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ABCMR Record of Proceedings (cont)                                         AR20150001342



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