RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 March 2008
      DOCKET NUMBER:  AR20070017060


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James B. Gunlicks             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Roland S. Venable             |     |Member               |

      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 justice has run its course, and
an upgrade of his discharge is overdue.

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

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's record shows that he enlisted in the Regular Army and
entered active duty on 3 January 1977.  He was initially trained in and
awarded military occupational specialty (MOS) 76P (Material Control and
Accounting Specialist) and was later reclassified into MOS 76W (Petroleum
Supply Specialist).

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that
he was promoted to specialist four (SP4) on 25 July 1978, and after a
series of reductions, he was again promoted to SP4 on 1 September 1983.
This is the highest rank he attained while serving on active duty.  His
record documents no acts of valor, significant achievement, or service
warranting special recognition.

4.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on the following three separate occasions
for the offenses indicated:  19 August 1981, for leaving his appointed
place of duty without proper authority; 30 November 1981, for failure to go
to his appointed place of duty at the time prescribed, disobeying a lawful
order from a superior noncommissioned officer (NCO), and two specifications
of being disrespectful toward a superior noncommissioned officer (NCO); and
24 August 1982, for striking an NCO with a fist.

5.  The applicant's record is void of a separation packet containing the
specific facts and circumstances surrounding his discharge processing.  The
record does contain an Army Discharge Review Board (ADRB) Case Report &
Directive (OSA Form 172) that outlines the circumstances surrounding the
applicant's discharge processing.  It shows that on 21 October 1983, a
court-martial charge was preferred against the applicant for assault.  On 8
November 1983, the applicant consulted with legal counsel and requested
discharge, and on 30 December 1983, the separation authority approved the
applicant's discharge request and directed the applicant receive an UOTHC
discharge.

6.  The record also contains a properly constituted separation document
(DD Form 214) that shows on 12 January 1984, the applicant was discharged
under the provisions of Chapter 10, Army Regulation 635-200, for the good
of the service-in lieu of trial by court-martial, and that he received an
UOTHC discharge.

7.  On 5 December 1984, the ADRB, after careful consideration of the entire
record, voted to deny the applicant's request for an upgrade of his
discharge.

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.  The separation authority could approve
a general, under honorable conditions discharge (GD) or honorable discharge
(HD) if warranted by the member's overall record of service; however, a
discharge UOTHC is normally considered appropriate for members separated
under this provision of the regulation.

9.  Army Regulation 635-200, 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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

10.  Army Regulation 635-200, 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.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that an upgrade of his discharge is overdue,
and justice has been served was carefully considered.  However, this factor
is not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record does not include a separation packet that
contains the specific facts and circumstances surrounding the applicant’s
final discharge processing.  However, it does include an OSA Form 172 that
outlines the circumstances surrounding his separation processing, and a
properly constituted DD Form 214 that identifies the reason and
characterization of his discharge.  As a result, Government regularity in
the discharge process is presumed.

3.  The applicant’s separation document confirms he was discharged under
the provisions of chapter 10, Army Regulation 635-200, for the good of the
service, in lieu of trial by court-martial.  In connection with such a
discharge, he was charged with the commission of an offense punishable with
a punitive discharge under the UCMJ.

4.  Procedurally, the applicant was required to consult with defense
counsel, and to voluntarily request separation from the Army in lieu of
trial by court-martial.  In doing so, he would have admitted guilt to the
stipulated offense(s) under the UCMJ that authorized the imposition of a
punitive discharge. In the absence of information to the contrary, it is
concluded that all requirements of law and regulation were met and the
rights of the applicant were fully protected throughout the separation
process.

5.  The applicant's military service record documents no acts of valor,
significant achievement or service warranting special recognition that
would have warranted the issue of a GD or HD at the time of his discharge,
or that would support an upgrade at this time.  Therefore, there is an
insufficient evidentiary basis to support granting the requested relief.


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

__JBG  __  __DWS _  __RSV___  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.




                                  _____James B. Gunlicks____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070017060                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/DD                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1984/01/12                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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