RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20080001404 


	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 he be provided back and accrued leave for the period July through November 1994.   

2.  The applicant states, in effect, that he was erroneously issued non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and as a result, his career was ended by a senior noncommissioned officer (NCO) and a new battalion commander.  He claims his old commander never would have taken this action.  

3.  The applicant provides an Army Discharge Review Board (ADRB) Case Report and Directive (OSA Form 172) in support of his application.  He also refers to a July 1994 Leave and Earnings Statement; however, a copy of this document was not with the application that arrived for Board review.  

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 after serving in the United States Army Reserve (USAR) and on active duty from 31 January through 5 December 1985, the applicant enlisted in the Regular Army and began the period of service under review on 13 February 1990.  He successfully completed advanced individual training in and was awarded military occupational specialty (MOS) 63J (Quartermaster and Chemical Equipment Repairer) in May 1990.  Upon completion of AIT, he was assigned to Hawaii.  He remained in Hawaii until 
19 May 1993, at which time he departed for Fort Hood, Texas.  

3.  Item 18 (Appointments and Reductions) of the applicant's Personnel Qualification Record (DA Form 2-1) shows that he was promoted to sergeant (SGT) on 1 February 1993, and that this is the highest rank he attained while serving on active duty.  
4.  Item 21 (Time Lost) of the applicant's DA Form 2-1 shows that he was declared absent without leave (AWOL) from his unit at Fort Hood on 15 June 1994, and he remained in that status for 7 days until 22 June 1994, when he entered civil confinement for 3 days until 24 June 1994.  On 25 June 1994, his duty status changed from civil confinement to AWOL.  He remained in an AWOL status for 11 days until 5 July 1994, when he returned to military control at Fort Hood.  On 26 July 1994, the applicant departed AWOL from his unit at Fort Hood and remained away for 48 days until returning to military control on 11 September 1994.  

5.  The applicant's Official Military Personnel File (OMPF) is void any documents or orders that indicate the applicant ever received NJP under the provisions of Article 15 of the UCMJ at anytime while he was serving on active duty.  

6.  On 25 August 1994, a Charge Sheet (DD form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by going AWOL on 26 July 1994.  

7.  On 15 September 1994, 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.  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.  On 20 October 1994, the separation authority approved the applicant's discharge in lieu of trial by court-martial, and directed that he receive an UOTHC discharge, and that he be reduced to PV1 prior to the execution of his discharge. On 15 November 1994, the applicant was discharged accordingly, in the rank of PV1.  


9.  On 13 August 1997, the ADRB, after reviewing the applicant's entire record of service, determined the characterization of his service as UOTHC was too harsh and voted to upgrade the discharge to a general, under honorable conditions discharge (GD), and as a result of this upgrade his rank was restored to SGT.  However, the ADRB did conclude that the authority and reason for discharge were proper and equitable and voted not to change them.  

10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides the Army's enlisted promotion and reduction policy.  Chapter 10 contains guidance on reductions.  It states, in pertinent part, that when the separation authority determines that a Soldier is to be discharged from the Service UOTHC, he/she will be reduced to the lowest enlisted grade.  Board action is not required for this reduction.  The CDR having separation authority will, when directing a discharge UOTHC or when directed by higher authority, direct the Soldier to be reduced to PV1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he received an erroneous Article 15 and as a result is entitled to back pay and allowances from July through November 1994, was carefully considered.  However, there is insufficient evidence to support this claim.  The applicant's OMPF is void of any documents or order that indicate he ever received an Article 15, or that he lost any pay and allowances as a result of erroneous NJP.  Absent any evidence that the applicant received an erroneous Article 15 or that he unjustly lost any pay and allowances due during the period in question, there is an insufficient evidentiary basis to support granting the requested relief.  

2.  The evidence of record does confirm that 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 the applicant's 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.  It also shows that the separation authority directed he receive an UOTHC discharge and that he be reduced to PV1 in accordance with the applicable regulation.  

3.  The record also shows that the ADRB voted to upgrade the applicant's discharge to GD as a matter of equity based on his overall record of service, which also resulted in the ADRB restoring his grade to SGT.  
4.  However, the ADRB also determined that the authority and reason for his discharge were proper and equitable, and it voted not to change them.  The restoration of the applicant's grade that resulted from the ADRB upgrade action was accomplished as a matter of equity and does not call into question the propriety of the original UOTHC discharge, or the reduction action of the separation authority that was taken as a result, which was required by regulation; and does not support granting pay and allowances.  Therefore, it would also not be appropriate to grant the requested relief on the basis of the ADRB action. 

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.

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)                                         AR20080001404


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