IN THE CASE OF:	  

		BOARD DATE:	  19 August 2008

		DOCKET NUMBER:  AR20080006624 


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), under honorable conditions.

2.  The applicant states, in effect, that he feels he has lived with and suffered long enough for the mistakes he made as a youth.  He now requests that his UOTHC discharge be upgraded to a GD.

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Third-Party Statement; College Transcripts; General Educational Development (GED) Certificate; Separation Document (DD Form 214); DD Form 215 (correction to the DD Form 214); Report of Separation (NGB Form 22); Personnel Qualification Record (DA Form 2-1); Enlistment Contract (DD Form 4); Separation Packet; Telephone Conversation Record (DA Form 751); Certificate of Understanding (AGO ORE 185); Statement for Enlistment National Guard (NGB Form 21); Parental Consent Declaration for  Enlistment (DD Form 373); Application for Review of Discharge or Dismissal (DD Form 293); Discharge Review Board Letter, dated 28 August 1981; Notice of Unauthorized Absence from United States Army (DA Form 3835); Commander's Report of Inquiry/Unauthorized Absence (DA Form 4348-R); Suspense of Favorable Personnel Action (DA Forms 268); Personnel Action (DA Form 4187); Disposition Form (DA Form 2496); Company F, 2nd Battalion, School Brigade, United States Army Armor School Letters, dated 13 June 1977, 15 June 1977 and 21 July 1977; and a Charge Sheet (DD Form 458).

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 records show he enlisted into the Regular Army and entered active duty on 6 March 1977.  His record also shows he never completed advanced individual training (AIT) and was never awarded a military occupational specialty (MOS).  His record shows the highest grade he attained while serving on active duty was private/E-1 (PVT). 

3.  The applicant's record documents no acts of valor or significant achievement. It further shows that during his active duty tenure, he earned the Sharpshooter Marksmanship Qualification Record with Rifle Bar.  

4.  On 21 July 1977, 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 absent without leave (AWOL) from on or about 21 June 1977 through 23 August 1977. 

5.  On 31 August 1977, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UOTHC discharge, and of the rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request, he acknowledged that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all Department of Veterans Affairs (VA) benefits, he could be deprived of his rights and benefits as a veteran under both Federal and State law, and he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge.  

6.  On 19 September 1977, the separation authority approved the applicant's discharge request and directed the applicant receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 28 September 1977, the applicant was discharged accordingly.  
7.  The DD Form 214 issued to the applicant at the time of his discharge confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  It further shows that he had completed a total of 
3 months and 13 days of creditable active military service and that he had accrued 97 days of time lost due to being AWOL.  

8.  On 29 October 1982, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s case, determined his discharge was proper and equitable, and voted to deny his request for an upgrade of his discharge.

9.  The applicant provides third-party statements from his mother and friends who all recommend that his discharge be upgraded.  These individuals state that the applicant is a very responsible, caring, dependable, and trustworthy person.

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 is normally considered appropriate for members separated under this provision of the regulation.  However, the regulation does allow the issuance of a general, under honorable conditions discharge (GD), or an honorable discharge (HD), if the separation authority determines it is warranted based on the member's overall record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge based on the fact that he was young was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.  

2.  By regulation, an UOTHC discharge is normally appropriate for members separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  However, the separation authority may direct a GD or HD be issued if such is merited by the Soldier's overall record during the current enlistment.  In this case, the applicant's record is void of any acts of valor or significant achievement that would have warranted a GD or HD being issued by the separation authority at the time, or that supports an upgrade at this time.  


3.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The evidence also shows the applicant was processed for separation in lieu of trial by court-martial at his own request, in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UOTHC, which was consistent with regulatory policy.

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
      
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)                                         AR20080006624



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ABCMR Record of Proceedings (cont)                                         AR20080006624


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