IN THE CASE OF:	

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080004769 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (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 he went home on leave from Korea in 1975, and he became preoccupied with helping his mother, who was a single parent raising 8 other children and needed help in farming.  He states he now understands what his obligation to the military was.  

3.  The applicant provides no additional documentary evidence on 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 he enlisted in the Regular Army and entered active duty on 28 June 1974, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman). 

3.  The applicant's record shows the highest rank he held while serving on active duty was private first class (PFC).  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant's record reveals an extensive disciplinary history that includes a Special Court-Martial (SPCM) conviction on 3 May 1976, and his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on at least three separate occasions.

5.  On 22 July 1976, the applicant departed absent without leave (AWOL).  He remained away for 563 days until being apprehended by civilian authorities and returned to military control on 4 February 1978.    

6.  On 17 February 1978, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about
22 July 1976 through on or about 5 February 1978.  

7.  On 17 February 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 under other than honorable conditions (UOTHC) discharge.  

8.  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.  He stated that by submitting 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.  


9.  On 3 March 1978, 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 10 March 1978, the applicant was discharged accordingly.  The separation document (DD Form 214) issued to the applicant upon his discharge confirms he completed 1 year, 11 months, and
27 days of active service on his current enlistment, and a total of 3 years, 9 months, and 24 days of creditable active military service.  It also shows that he accrued a total of 625 days of time lost due to AWOL and confinement.  

10.  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.  

11.  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 the reason for his committing the AWOL offense that led to his discharge was his preoccupation with helping his mother and his fear of imprisonment was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief. 

2.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.  However, it does confirm he 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 that 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 a GD or HD 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
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004769



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ABCMR Record of Proceedings (cont)                                         AR20080004769


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