IN THE CASE OF:	  

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150004226


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 upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states that he was going through a hard time.  He was young and away from home for the first time.  He also had lost a family member.  He was young and stupid and made a life changing mistake.

3.  The applicant did 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.  The applicant enlisted in the Regular Army on 24 June 1980.  He held military occupational specialty 13B (Cannon Crewman).
3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Korea from 11 October 1980 through 5 October 1981.  He was awarded the Army Service Ribbon and the Overseas Service Ribbon.  He attained the rank/grade of specialist four/E-4 effective 1 February 1982 and he was reduced to private first class/E-3 effective 24 March 1982.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 24 March 1982 for being absent without leave (AWOL) from 2 March to 4 March 1982.

5.  On 29 September 1982, charges were preferred against the applicant for being AWOL from 2 April to 27 September 1982.

6.  He consulted with counsel and he voluntarily 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.  He acknowledged he understood the elements of the charge against him and admitted he was guilty of at least one offense which authorized a punitive discharge.  He also acknowledged he understood he may be discharged under other than honorable conditions and furnished a UOTHC Discharge Certificate which would deprive him of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He indicated he would not submit a statement in his own behalf. 

7.  Consistent with the chain of command recommendations, the separation authority approved the separation on 8 October 1982 and directed issuance of a UOTHC discharge.

8.  On 28 October 1982, the applicant was so discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He had completed 1 year, 10 months, and 7 days of total active service.  

9.  On 10 December 1981, the Army Discharge Review Board determined he had been properly discharged and denied his request for a change in his discharge.

10.  Army Regulation 635-200 provides 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 at the time an undesirable discharge was 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.  The applicant indicated he was going through a hard time.  He was young and away from home for the first time.  He also had lost a family member.  He was young and stupid and made a life changing mistake.  However, these issues do not sufficiently mitigate the misconduct that led to his discharge.

2.  Notwithstanding his contention that he was young and stupid, the applicant had demonstrated the capacity for honorable service by completing  training, advancing to pay grade E-4, and completing approximately 1 year and 
10 months without an offense of record.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with legal counsel, indicates he wished to avoid trial by court-martial and the punitive discharge he might have received.  His service was characterized by the nature of his offense and the circumstances of his separation and does not warrant an upgrade to honorable or general.

4.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to either fully honorable or general.



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)                                         AR20110020828



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ABCMR Record of Proceedings (cont)                                         AR20150004226



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