BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20150001695 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD).  

2.  The applicant states other service members have been discharged for the same reason and received a GD.  He feels his discharge is unjust.

3.  The applicant provides no 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 on 3 July 1997, completed training, and was awarded the military occupational specialty 13B (Cannon Crewman).

3.  Between 5 May 1998 and 3 March 1999, the applicant received 17 negative general counseling statements for diverse infractions including failure to follow orders, disrespect toward a noncommissioned officer (NCO), failure to go to his place of duty, disobeying a lawful order, and provoking speech and gestures.

4.  The applicant provided urine samples on 26 May 1998 and 17 February 1999 that tested positive for THC (marijuana use).

5.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 3 March 1999 for wrongfully use provoking language and reproachful words and gestures towards an NCO.

6.  On 16 April 1999 court-martial charges were preferred for failing to go at the time prescribed to his appointed place of duty (five specifications), willfully disobeying a lawful order from noncommissioned officer and showing disrespect toward an NCO, dereliction of duty, and wrongfully using marijuana.

7.  On 23 June 1999, 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 (Active Duty Enlisted Administrative Separations), 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 if he were found guilty of the charge or a lesser included charge, he could be discharged with a punitive discharge and, if his 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.  

8.  On 15 July 1999, the court-martial convening authority approved the applicant's request for discharge in lieu of trial by court-martial.  He dismissed the court-martial charges and directed the applicant be reduced to the lowest enlisted grade and discharged with a UOTHC Discharge Certificate.

9.  The applicant was discharged accordingly on 30 July 1999.  His DD Form 214 shows he had 1 year, 10 months, and 13 days of creditable service with lost time shown as "19990505-19990621; 19990622-19990718."  

10.  There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  An honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. 

	b.  A general discharge (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. 

	c.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was accused of several offenses and he contends he was treated unfairly compared to other Soldiers who received GD for the same offenses.  The evidence does not support his contention.  

2.  The discharge proceedings were conducted in accordance with the law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military 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.

1500BOARD 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)                                         AR20150001695



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ABCMR Record of Proceedings (cont)                                         AR20150001695



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