RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20080002752 


	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.   

2.  The applicant states, in effect, that the charges for which he was discharged were not fully investigated and he believes the character of his service should be upgraded.  He claims that he was under medication at the time and had no knowledge of what happened.   

3.  The applicant provides Chronological Records of Medical Care (SFs 600) 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 after serving in the Army National Guard (ARNG) and United States Army Reserve (USAR), he enlisted in the Regular Army and entered active duty on 15 January 1980. 

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he held and served in military occupational specialty (MOS) 64C (Heavy Vehicle Driver), and that he was assigned to Germany, and arrived there for duty in February 1980.  Item 9 (Awards, Decorations & Campaigns) shows that during his active duty tenure, he received the Sharpshooter Marksmanship Qualification Badge with Grenade Bar and Marksman Marksmanship Qualification Badge with 
Rifle Bar.  It also confirms that private/E-2 (PV2) is the highest rank he attained during this period of active duty service.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  


4.  The applicant underwent a mental status evaluation.  The examining physician indicated that although the applicant demonstrated passive aggressive behavior and suffered from depression, he suffered from no significant mental illness.  He also indicated that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  He further confirmed that the applicant met medical retention standards.  The applicant also underwent a complete separation medical examination, and the Report of Medical Examination (SF 88) on file confirms the examining physician determined he was qualified for retention/separation and the applicant was medically cleared for separation.  

5.  After a court-martial charge was preferred against the applicant for violating Article 128 of the Uniform Code of Military Justice (UCMJ) by committing assault with a dangerous weapon, the applicant consulted with legal counsel on 
22 September 1980, 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 under other than honorable conditions (UOTHC) discharge.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Chapter 10, 
Army Regulation 635-200.  

6.  In his discharge request, the applicant indicated that he understood that by submitted the request for discharge, he was acknowledging 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.  

7.  On 6 November 1980, 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 4 December 1980, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued at the time shows he completed 10 months and 20 days of active duty service during the period, and a total of 1 year, 1 month, and 26 days of active military service.  

8.  The applicant provides medical treatment records that show he was being treated for a back injury between March and July 1980, and that he also suffered from anxiety and depression during this period.  These documents give no indication that these conditions were medically disqualifying or supported his separation processing through medical channels.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 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 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 honorable discharge (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 contention that his UOTHC was unjust because he was suffering from depression at the time was carefully considered.  However, the evidence of record shows that the applicant's medical condition was not disqualifying for further service and it was not sufficiently disabling to support his separation processing through medical channels.  

2.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.  The record does confirm the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that 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 discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance, and his overall record of service clearly did not support the issue of a GD or HD by the separation authority at the time, nor does it support an upgrade now.  

4.  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)                                         AR20080002752



2


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