RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060013144 


	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.


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	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 changed to an uncharacterized discharge.

2.  The applicant states, in effect, that he is requesting that his UOTHC discharge be changed to an uncharacterized discharge based on the fact under current standards if he were discharged he would have received an entry level discharge.  He claims that he had served on active duty for less than 180 days and that the 9 months and 10 days of net active service shown on his separation document (DD Form 214) includes the 6 months he was on the Delayed Entry Program.  He claims he is currently attempting to enlist with the Maryland Army National Guard and was informed that he would have to get his discharge characterization changed in order to enlist.  He further states that he sincerely regrets his past mistakes and wishes to amend them by returning to the service and completing what he did not finish so long ago. 

3.  The applicant provides his DD Form 214 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 3 November 1986.  The application submitted in this case is dated 30 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.  A Record of Enlistment/Reenlistment Document (DD Form 4), dated 
7 December 1984, on file in the applicant's Military Personnel Record Jacket (MPRJ) confirms he enlisted into the United States Army Reserve (USAR) for 
8 years and entered the Delayed Entry Program (DEP) in an inactive military status on that date.  


4.  The applicant's DD Form 4 also shows that on 12 November 1985, he was discharged from the DEP and enlisted in the Regular Army for a period of 3 years and entered active duty on that date.  His record also shows he never completed advanced individual training (AIT) and was never awarded a military occupational specialty (MOS).  

5.  On 3 January 1986, while assigned to Company C, 11th Military Police Battalion, Fort McClellan, Alabama, the applicant departed absent without leave (AWOL) from his unit.  On 2 February 1986, he was dropped from the rolls of the organization. 

6.  On 24 March 1986, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 3 January 1986 through on or about 17 March 1986.  

7.  On 24 March 1986, 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. 

8.  On 29 September 1986, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 3 November 1986, 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 9 months and 10 days of creditable active military service between 12 November 1985, the date of his entry on active duty and 
3 November 1986, the dated of his separation.  It also shows he accrued 72 days of time lost due to AWOL.  

9.  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.  

10.  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.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 contains guidance on characterization/description of service.  Paragraph 3-9 contains guidance on Entry Level Status (ELS) separations.  It states, in pertinent part, that a separation will be described as entry-level with service "Uncharacterized" if at the time separation action is initiated; the Soldier has less than 180 days of continuous active duty service.  It also stipulates that an ELS "Uncharacterized" description of service is not authorized when a UOTHC characterization is authorized under the reason for separation and is warranted by the circumstances of the case. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that based on having served less than 180 days on active service and based on current standards his UOTHC discharge should be changed to an ELS with a service description of "Uncharacterized" was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation a separation will be described as entry-level with service "Uncharacterized" if at the time separation action is initiated; the Soldier has less than 180 days of continuous active duty service.  Further, an "Uncharacterized" description of service is not authorized when an UOTHC characterization is authorized under the reason for separation and is warranted by the circumstances of the case. 

3.  The evidence of record confirms the applicant served in the DEP for 
11 months and 5 days, from 7 December 1984 through 11 November 1985, and that he entered active duty on 12 November 1985, and service in that status for 11 months and 22 days until 3 November 1986, at which time he was separated with an UOTHC.  


4.  The applicant's DD Form 214 accurately reflects he completed a total of 
9 months and 10 days of creditable active military service in Item 12c, which accounts for the deduction of 72 days of time lost from his total active duty service of 11 months and 22 days.  Therefore, the applicant was no longer in an ELS (first 180 days of active duty service) at the time of his separation.  

5.  The applicant's DD Form 214 confirms he was separated under these provisions of the regulation, and that he received an UOTHC discharge.  Therefore, even had he still been in an ELS, he would not have been entitled to receive an "Uncharacterized" description of service because it is not authorized when an UOTHC characterization is authorized under the reason for separation.  

6.  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. 

7.  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.

8.  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.  The separation authority may direct a GD or HD 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.  

9.  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.  


10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 November 1986, the date of his discharge.  Thus, the time for him to file a request for correction of any error or injustice expired on 2 November 1989.  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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060013144
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/20
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1986/11/03
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.