IN THE CASE OF:  	  

		BOARD DATE:  15 September 2015	  

		DOCKET NUMBER:  AR20150002311


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

2.  The applicant states he has been a law-abiding citizen for 40 years with no criminal record at all.  He has grown to be a better person and respects authority. He is older, wiser, and acknowledges his mistake.  

3.  The applicant does not provide any 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.  On 12 July 1971, the applicant enlisted in the Regular Army at the age of 20 years old.  After initial training, he was awarded military occupational specialty 63B (Light-Wheel Vehicle Mechanic).

3.  His DA Form 20 (Enlisted Qualification Record) shows he was promoted to private (PVT)/E-2 on 12 November 1971, and to private first class (PFC)/E-3 on 25 January 1972.

4.  The applicant was absent without leave (AWOL) from his unit from 
18 July 1972 until 10 September 1972.

5.  His record contains a DD Form 458 (Charge Sheet), dated 
11 September 1972, which shows he was charged with one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from his unit from on or about 18 July 1972 to 10 September 1972 and was pending a special court-martial.

6.  On 28 September 1972, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UCOTH discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

7.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* advised he may be furnished an Undesirable Discharge (UD) Certificate
* advised he could submit statements in his own behalf 

8.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

9.  The applicant indicated he would not submit a statement in his own behalf.  

10.  On 3 October 1972, his chain of command recommended approval of his request and recommended issuance of a UD.

11.  On 13 October 1972, the separation authority approved his request, directed a reduction to the grade of PVT/E-1 and directed an issuance of a UD Certificate.

12.  On 31 October 1972, he was discharged under the provisions of chapter 10, Army Regulation 635-200, with a service characterization of UCOTH.  He completed a total of 1 year, 1 month, and 26 days of creditable active military service and had 52 days of lost time from 18 July 1972 to 9 September 1972.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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 at any time after the charges have been preferred.  An unauthorized absence in excess of 30 consecutive days can lead to a punitive discharge or confinement under the Manual for Courts-Martial.

	b.  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 honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his UCOTH discharge be upgraded to a GD was carefully considered. 

2.  He implies his misconduct was the result of his young age and immaturity.  His record shows he was 20 years of age at the time of his enlistment and at the time of his offenses.  There is no evidence indicating that he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction or a punitive discharge. 

4.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  Further, his discharge accurately reflects his overall record of service.

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)                                         AR20140019113



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ABCMR Record of Proceedings (cont)                                         AR20150002311



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