RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20080000809 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 to an honorable discharge (HD).

2.  The applicant states, in effect, that he would like to have his UOTHC discharge upgraded to an HD to allow him the opportunity to return to active duty.

3.  The applicant provides six character reference statements 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 military record shows he enlisted in the Regular Army and entered active duty on 19 November 1996.  Prior to completing his initial training, the applicant departed absent without leave (AWOL) on 21 May 1997, and he was subsequently dropped from the rolls of the organization on 20 June 1997.

3.  The applicant's Official Military Personnel File (OMPF) contains a Personnel Action (DA Form 4187), which shows he surrendered to military authorities and was returned to the control of the Army on 17 October 1997.

4.  The applicant’s OMPF is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly constituted separation document that shows he was discharged under the provisions of Chapter 10, Army Regulation 635-200, in lieu of trial by court martial.


5.  The applicant’s separation document also confirms he was discharged on 6 February 1998, after completing a total of 9 months and 19 days of creditable active military service and accruing 146 days of time lost due to AWOL.  It also confirms he received an UOTHC discharge.  

6.  On 19 May 2000, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board (ADRB) concluded the applicant’s discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.  

7.  The applicant provides six character reference statements from individuals who all attest to the applicant's trustworthiness, resourcefulness, and to his good work habits.  

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.  A discharge under other than honorable conditions is normally considered appropriate.  A general, under honorable conditions discharge (GD) or HD may be issued by the separation authority if warranted by the member's overall record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because he was young and did not understand the consequences of his actions has been carefully considered.  However, this factor is not sufficiently mitigating to support an upgrade of his discharge.

2.  The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s discharge.  This document confirms the applicant was discharged under the provisions of Chapter 10, Army Regulation 635-200, in lieu of trail by court-martial, and that he received an UOTHC discharge.  This separation document carries with it a presumption of Government regularity in the separation process. 


3.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ).  Procedurally, he 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. 

4.  Lacking evidence 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.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance, and his overall record of undistinguished service clearly did not support a GD or HD at the time of his discharge, nor does it support an upgrade now.  

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 failed to submit evidence that would satisfy this requirement.

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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      ________x______________
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080000809



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508