RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060010003 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


x

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that he has a very serious lung disease which has required him to be hospitalized on several occasions.  He states that he is requesting that his UOTHC discharge be upgraded so that he may receive medical treatment through the Department of Veterans Affairs (VA).

3.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 7 November 1983.  The application submitted in this case is dated 
9 July 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows he enlisted into the Regular Army and entered active duty on 24 January 1978.  He was trained in, awarded, and served in military occupational specialty (MOS) 11C (Indirect Fire Infantryman), and the highest rank he attained while serving on active duty was private first class (PFC).  His record documents no acts of valor, significant achievement or service warranting special recognition.  

4.  On 19 July 1983, a Charge Sheet (DD Form 458) was prepared preferring court-martial charges against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from on or about  4 September 1979 through on or about 18 July 1983.  


5.  On 20 July 1983, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UOTHC discharge, and of the rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request, he acknowledged that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all VA benefits, he could be deprived of his rights and benefits as a veteran under both Federal and State law, and he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge. 

6.  On 26 August 1983, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge and reduced to the lowest enlisted grade.  On 7 November 1983, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant at the time confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  It further shows that he had completed a total of 1 year, 10 months, and 28 days of creditable active military service and that he had accrued 508 days of time lost due to AWOL.  

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part 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.  An UOTHC discharge is normally considered appropriate for members separated under this provision of the regulation.  However, the regulation does allow the issue of a general, under honorable conditions discharge or an honorable discharge if the separation authority determines is warranted based on the member's overall record of service.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his UOTHC discharged be upgraded so that he may receive medical benefits was carefully considered.  However, while his current medical condition is unfortunate, this factor alone does not provide a sufficient evidentiary basis to support granting the requested relief.  

2.  By regulation, an UOTHC discharge is normally appropriate for members separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  However, the separation authority may direct a GD or HD be issued if such is merited by the Soldier's overall record during the current enlistment.  In this case, the applicant's record is void of any acts of valor, significant achievement, or service warranting special recognition that would have warranted anything other than an UOTHC discharge at the time, or that would support an upgrade of his discharge at this time. 

3.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UOTHC, which was consistent with regulatory policy.

5.  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.  

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 November 1983.  Therefore, the time for him to file a request for correction of any error or injustice expired on 6 November 1986.  He failed to file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x _  __x ___  _x  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____x____
          CHAIRPERSON




INDEX

CASE ID
AR20060010003
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/02/06
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1983/11/07
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
Chapter 10
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
110
2.

3.

4.

5.

6.