RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080000879 


	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.









      The following members, a quorum, were present:













	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 a general, under honorable conditions discharge (GD).   

2.  The applicant states, in effect, that his superiors informed him that he would receive a compassionate reassignment, and an officer at Fort Belvoir, Virginia, advised him that due to the short time he had remaining in the service, a discharge that would be honorable could be approved.  

3.  The applicant provides the following documents in support of his application:  Self-Authored Letter; Enlisted Evaluation Report (EER); and Third-Party Statements.  

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 20 July 1976.  His Personnel Qualification Record 
(DA Form 2-1) shows he was trained in and awarded military occupational specialty (MOS) 12B (Combat Engineer).  Item 18 (Appointments & Reductions) shows that he was promoted to specialist four (SP4) on 14 April 1978, and that this is the highest rank he attained while serving on active duty.  Item 18 also shows that he was reduced to private/E-2 (PV2) on 22 February 1978 and to private/E-1 (PV1) on 16 January 1979.  


3.  Item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 shows that during his active duty tenure, he earned the Expert Marksmanship Qualification Badge with Hand Grenade Bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Marksman Marksmanship Qualification Badge with Machinegun Bar.  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 22 February 1978, for possession of marihuana.  His punishment for this offense was a reduction to PV2, forfeiture of $103.00 
($42.00 suspended), and 14 days restriction.  

5.  On 13 December 1978, a Charge Sheet (DD Form 459) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being absent without leave (AWOL) from on or about 3 November 1978 through on or about 8 December 1978.  

6.  On 14 December 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum punishment authorized under the UCMJ, the significance of a bad conduct or dishonorable discharge, and of the possible effects of an UOTHC discharge.  Subsequent to this counseling, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 
635-200.  

7.  In his request for discharge, the applicant acknowledged his guilt of the charge against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  He further indicated that he understood that if his request for discharge were approved, he could receive an UOTHC discharge, which could result in his being deprived of many or all Army benefits that he would be administratively reduced to the lowest enlisted grade, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA).  He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life because of an UOTHC discharge.  


8.  The applicant submitted a statement in his own behalf in conjunction with his discharge request, in which he indicated that he went AWOL after being told he did not have sufficient justification for a compassionate reassignment by 
Fort Belvoir personnel.  He further stated that it was his belief that he should have received this reassignment based on the death of his aunt, who had raised him, and the death of his grandfather, who he was close to. He also confirmed he had no desire to return to duty or continue his service. 

9.  On 16 January 1979, the separation authority approved the applicant's discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service, and directed the applicant receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 18 January 1979, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued upon his discharge confirms he completed a total of 2 years,
4 months, and 24 days of creditable active military service and that he accrued 
35 days of time lost due to AWOL.  

10.  The applicant provides an EER covering the period November 1976 through April 1978, which shows he received a total evaluation score of 111, and contained favorable comments from his Rater, a sergeant first class, and his Indorser, a second lieutenant.  The applicant also provides a third-party letter from a retired lieutenant colonel, who states that the applicant and he became friends while serving in Germany.  He states that he was very surprised when the applicant informed him that he had received an UOTHC discharge, and believes that the noncommissioned officers and officers at Fort Belvoir misrepresented the applicant, and indicates that had the applicant known he was not going to receive an honorable discharge (HD), he would have gone back to Germany and completed his tour.  He also provides a statement from the Commander of Post 9683 of the Veterans of Foreign Wars (VFW), who states the applicant has become a valuable asset in his volunteer work with the Post and has certainly become an outstanding member of the community.  

11.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  


12.  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 normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  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 contentions that his discharge was unjust because he deserved to receive a compassionate reassignment, and the supporting evidence he provided was carefully considered.  However, while the death of his aunt and grandfather were unfortunate, they did not support his compassionate reassignment from Germany.  As a result, this factor is not sufficiently mitigating to support granting the requested relief.  

2.  Although the applicant received an average EER with positive comments from his rater and indorser, his record documents no acts of valor, significant achievement or service warranting special recognition.  However, it does confirm a disciplinary history that included his acceptance of NJP for possession of an illegal drug, and the period of AWOL that resulted in his discharge processing.  

3.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process. 

4.  Notwithstanding the third-party statement of the retired LTC, who indicates that had the applicant known he would receive an UOTHC discharge, he would have returned to Germany to complete his tour, the applicant's separation packet contains his own statement in which he indicates he did not desire to return to duty or to serve further.  

5.  The applicant's post-service conduct, as attested to in the statement provided by the VFW Post Commander, is noteworthy.  However, this factor alone does not support granting the requested relief.  The record confirms the applicant requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge after being fully advised of the implications of that discharge by legal counsel.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance, and his overall record of service clearly did not support a GD or HD at the time, nor does it support an upgrade now.  

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

__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)                                         AR20080000879



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