BOARD DATE:	 6 October 2015 

		DOCKET NUMBER:  AR20150002762 


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 discharge under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states:

* his discharge is too harsh
* he joined the Army in February 1979
* everything was perfect until he was told he could not live off post
* he started receiving Article 15s
* one time his sergeant advised him to go so he followed his instructions and went back to Texas
* he turned himself in 3 months later

3.  The applicant provides:

* self-authored statement, dated 12 December 2014
* discharge orders
* DA Form 2-1 (Personnel Qualification Record – Part II)
* DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The American Legion, counsel for the applicant, requests amendment of the applicant's character of service from UOTHC to honorable.

2.  Counsel states:

* the applicant served as a combat engineer
* his discharge is unjust
* he was having problems in his marriage and was advised by his direct supervisor to go home and take care of the issue
* he understands that was not the best advice and would like to take responsibility for his actions and short comings

3.  Counsel 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 28 February 1978 for a period of 3 years.  He completed his training and was awarded military occupational specialty 12B (combat engineer).

3.  In September 1978, nonjudicial punishment was imposed against him for being AWOL from 21 August 1978 to 23 August 1978.

4.  His records show he was again AWOL from 19 March 1979 to 25 June 1979.

5.  On 10 July 1979, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under conditions other than honorable and given a discharge UOTHC, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC.  He elected not to make a statement in his own behalf.

6.  The separation authority's action is not available for review.

7.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Orders 214-97, dated 2 August 1979, show he was discharged under the provisions of Army Regulation 635-200, chapter 10, effective 3 August 1979.  He completed 1 year, 1 month, and 25 days of creditable active service with 101 days of lost time.  His service was characterized as UOTHC.

8.  There is no evidence that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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 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 or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

	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 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.  Counsel's contention that the applicant was having marital problems was noted.  However, marital problems alone are normally not a basis for upgrading a discharge.

2.  His record of service included one nonjudicial punishment and 101 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

4.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20150002762



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ABCMR Record of Proceedings (cont)                                         AR20150002762



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