IN THE CASE OF:	  

		BOARD DATE:	       13 August 2008

		DOCKET NUMBER:  AR20080006282 


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 discharge (GD).

2.  The applicant states, in effect, that he went AWOL (absent without leave) but returned to duty.  He made a mistake, was put in the stockade for 30 days and has been paying for the mistake every since he was separated.  He served honorably for more than a year.  He needs the upgrade to obtain Department of Veterans Affairs (VA) educational, housing, employment assistance and medical care.

3.  The applicant provides no supporting documentation.

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 entered active duty on 8 March 1979, completed training, and was awarded the military occupational specialty (MOS) 13B (Cannon Crewmember).  

3.  Upon completion of training the applicant was assigned to Fort Lewis, Washington for duty.

4.  He was AWOL from 19 through 21 December 1979 and 9 January 1980 through 14 February 1980.  

5.  Court-martial charges for these two periods of AWOL were preferred and he was placed in pretrial confinement.

6.  On 28 February 1980, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that, if the request was accepted, that he could receive a discharge under conditions other than honorable and be furnished a UOTHC discharge.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge. 

7.  The discharge authority approved the request for discharge and directed that the applicant be reduced to the lowest enlisted grade and separated with a UOTHC discharge.

8.  On 24 June 1980, the applicant was discharged under other than honorable conditions.  He had completed 10 months and 20 days of creditable service with 46 days of lost time.

9.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  In pertinent part, it states at:

	a.  Paragraph 3-7b, as then in effect, stated that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  

	b.  Paragraph 3-7c states that a UOTHC was issued when there was one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of a UOTHC for discharges issued under the provisions of chapter 10 of this regulation; and

	c.  Chapter 10, as then in effect, provided that a member who had 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 conditions other than honorable was normally considered appropriate and the regulation provided for the issuance of a UOTHC discharge.

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

3.  The applicant's request for an upgrade to obtain VA benefits is not in and of itself sufficient to warrant an upgrade; especially in light of the fact that the applicant served less than a year and his record is devoid of any indication of significant service.

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)                                         AR20080006282



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ABCMR Record of Proceedings (cont)                                         AR20080006282



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