IN THE CASE OF:	  

		BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20150001492 


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 discharge.

2.  The applicant states he was not properly represented by counsel because he was stationed overseas.  He claims he never did anything wrong; he just ran.  The applicant further states he needs to see a doctor.  He indicates he is willing to appear before the Board "in [Atlanta]."

3.  The applicant 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 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 15 October 1980.
3.  Evidence contained in the applicant's military records shows court-martial charges were preferred against the applicant for, on or about 6 February 1982, violating Article 121, Uniform Code of Military Justice (UCMJ), by stealing German Deutsche Marks (DM), a value of about 920 DM, the property of  G_____ M_____.

4.  On 2 July 1982, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ that authorized the imposition of a bad conduct or a dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial were approved, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

5.  In his request for discharge, he indicated he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Veterans Administration (VA).  He acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not submit any statements on his behalf.

6.  His immediate and intermediate commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge.

7.  On 13 July 1982, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.

8.  The applicant was discharged on 26 July 1982.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  His DD Form 214 further shows he completed           1 year, 9 months and 12 days of net active service during this period with no lost time.
9.  On 13 December 1984 and 4 June 1998, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

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

	a.  Chapter 10 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 Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

	b.  Paragraph 3-7a provides that 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.  Paragraph 3-7b states 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 honorable discharge.

11.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice and/or direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The applicant's records show 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.  The applicant 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.  Further, his discharge accurately reflects his overall record of service.

4.  The available evidence clearly shows the applicant violated the UCMJ and that is why court-martial charges were preferred against him.  It also clearly shows he was not denied any due process.  The applicant consulted with counsel who explained to him his rights, the elements of the offenses for which he was charged, the maximum punishments of his offenses, and the implications of choosing a chapter 10.  Only then did he voluntarily request the chapter 10 and acknowledge that he was making this request of his own free will.  

5.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making an applicant eligible for veteran's medical benefits.

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there appears to be no basis for upgrading his discharge to either 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)                                         AR20150001492





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ABCMR Record of Proceedings (cont)                                         AR20150001492



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