BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150003325 


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.

2.  The applicant states his wife had a miscarriage, his grandmother died, and his mother had open heart surgery all within a 1 and 1/2 year span.  He was very close to his grandmother, having a special bond with her in part due to sharing a birthday and her name.  At the time of his mother's surgery, he was the only son at home and his mother did not know that he had enlisted.  His wife had a miscarriage during basic training.  He states he asked for help but got nowhere.  He felt he had nobody to talk to and he handled the situation badly.  He is requesting an upgrade because he is trying to put his life in order.  

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 in the Regular Army on 1 June 1978, he completed training, and was awarded military occupational specialty 19E (M48-M60A1/A3 Armor Crewman).

3.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 31 October and on 14 December 1978, for failure to go to his appointed place of duty at the time prescribed.

4.  The applicant was absent without leave (AWOL) from 5 October through 3 November 1979.  

5.  On 26 November 1979, the applicant requested discharge under Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial for disobeying a lawful order and for being disrespectful toward a noncommissioned officer (NCO).  

6.  On 13 December 1979, a special court-martial was convened and found the applicant guilty of being AWOL from 5 October 1979 through 3 November 1979, disobeying a lawful order from an NCO, and being disrespectful toward an NCO. He was sentenced to 14 days in confinement and reduction to the lowest enlisted grade.

7.  On 14 January 1980, the discharge authority approved the applicant's request for a chapter 10 discharge.  

8.  On 14 February 1980, the general court-martial convening authority (GCMCA) affirmed the sentence and ordered the execution of his discharge.  That portion of the sentence pertaining to confinement had been served. 

9.  It appears the discharge action was not completed at that time because the applicant was AWOL from 2 January 1980 through 11 September 1981.

10.  The applicant was discharged on 4 December 1981 under AR 635-200 chapter 10, for conduct triable by court-martial with a UOTHC discharge.

11.  His DD Form 214 shows he had 2 years, 7 months, and 13 days of creditable service with 74 days in excess leave.  He is shown to have had four periods of lost time prior to his normal expiration term of service (ETS) date "791005-791102," "791105-791217," "800102-810531," and one period of lost time after his normal ETS date from "810601-810911." 

12.  Army Regulation 635-200 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 HD. 

	c.  A UOTHC discharge is issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

	d.  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.  

	e.  A Chapter 10 discharge request may be submitted after court-martial charges are preferred against the Soldier or, where required, after referral, until final action by the court-martial convening authority.

	f.  The request for discharge in lieu of trial by court-martial does not prevent or suspend disciplinary proceedings.  Whether proceedings will be held in abeyance pending final action on a discharge request per this chapter is a matter to be determined by the commander exercising general court-martial jurisdiction over the individual concerned. 

	g.  If disciplinary proceedings are not held in abeyance, the GCMCA may approve the Soldier's request for discharge in lieu of trial by court-martial after the Soldier has been tried (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a discharge in lieu of court-martial prior to his 13 December 1979 court-martial with approval through the brigade commander prior to the court-martial being convened.  
2.  The GCMCA appears to have decided to continue the disciplinary action through the court-martial process.  Since the court-martial did not recommend a punitive discharge, the GCMCA affirmed the sentence and ordered the applicant’s discharge under chapter 10.  

3.  The applicant would have been discharged in January or February 1980 except for the fact that he was AWOL at the time the GCMCA approved his discharge request.  

4.  The applicant has not provided and the record does not contain any evidence that he requested assistance from either his chain of command, the chaplain's office, or another agency with his personal problems. 

5.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  His character of service is commensurate with the offenses for which he was discharged and his overall record of military service.

6.  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.

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)                                         AR20150003325



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ABCMR Record of Proceedings (cont)                                         AR20150003325



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