RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060011468 


	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 discharge (UOTHC) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that due to his brother's violent death, his mental state was not very good at the time of his discharge.  He now requests that his UOTHC discharge be upgraded to an HD based on this mitigating factor. 

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 24 September 1982.  The application submitted in this case is dated 7 August 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 initially enlisted into the Regular Army (RA) and entered active duty on 14 March 1979.  He was trained in, awarded, and served in military occupational specialty (MOS) 91B (Medical Specialist), and the highest rank he attained while serving on active duty was specialist four (SP4).  

4.  On 27 January 1982, the applicant was honorably discharged for the purpose of immediate reenlistment, and on 28 January 1982, he reenlisted for 4 years.  

5.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that during his tenure on active duty, he earned the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Hand Grenade Bar; and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

6.  On 20 August 1982, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from on or about 30 April 1982 to on or about 1 June 1982; and from on or about 4 June 1982 to or about 18 August 1982.  

7.  On 25 August 1982, 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 he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense therein contained that authorized the imposition of a bad conduct discharge or dishonorable discharge.  He also acknowledged his understanding 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 Veterans Administration (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.  He further stated he would submit statements in his own behalf.

8.  On 24 August 1982, the applicant submitted a statement on his own behalf.  He stated that he went AWOL due to financial and family problems.  He stated that his older brother had recently been killed in a car accident and his little brother had been hospitalized with an unknown disease, which had caused great financial problems on his family.  He further stated that at the time of his reenlistment, his family was in a comfortable position in life.  However, due to his family needing financial assistance, he felt the need to help them out and being with them during this point in time.

9.  On 9 September 1982, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge.  On 
24 September 1982, 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 at the time, he had completed a total of 4 months and 
11 days of creditable active military service and that he had accrued 106 days of time lost due to AWOL on his current enlistment.

10.  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.  
11.  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.  A discharge under other than honorable conditions is normally considered appropriate.  The separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record of service.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that due to his older brother's death, his mental state was impaired was carefully considered.  However, while this situation was unfortunate, it was known and considered at the time of his discharge, and is not sufficiently mitigating to support an upgrade of his discharge at this late date. 

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.  

3.  In this case, the applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  Therefore, his overall record of service did not support a GD or HD at the time of his discharge, and it does not support an upgrade of his discharge at this late date.   

4.  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.  It also shows he 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 is 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 24 September 1982.  Thus, the time for him to file a request for correction of any error or injustice expired on 23 September 1985.  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
AR20060011468
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/02/21
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1982/09/24
DISCHARGE AUTHORITY
AR635-200 . . . .  
DISCHARGE REASON
Ch 10
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
110
2.

3.

4.

5.

6.