IN THE CASE OF:	  

	BOARD DATE:	  26 June 2008

	DOCKET NUMBER:  AR20080007314 


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 either a general (GD) or an honorable (HD) discharge. 

2.  The applicant states, in effect, that he believes that his discharge was inequitable because it is based on one isolated incident in 26 months of service with no other adverse action. 

3.  The applicant provides no documentary evidence 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 records show he enlisted in the United States Army Reserve on 30 January 1979.  On 14 March 1979 he was ordered to initial active duty for training.  Item 11 (Primary Specialty) of the DD214 (Certificate of Release or Discharge from Active Duty) does not show that the applicant was awarded a military occupational specialty and the highest rank he attained while on active duty was private (PV1).

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  On 4 April 1980, 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) for being absent without leave (AWOL) from on or about 1 June 1979 through on or about 11 March 1980.

5.  On 4 April 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UMCJ, the possible effects of an UOTHC discahrge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  On 23 April 1980, the separation authority approved the applicant’s request for discharge and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 14 May 1980, the applicant was discharged accordingly.

7.  The DD 214 issued to the applicant upon his discharge confirms he completed a total of 4 months and 16 days of creditable active military service, and that he had accrued 284 days [9 months and 10 days] of time lost due to AWOL. 

8.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of quilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.    


9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he believes his discharge was inequitable because it is based on one isolated incident in 26 months of service with no other adverse action was carefully considered.

2.  Notwithstanding the applicant’s contention that “his discharge was inequitable because it is based on one isolated incident in 26 months of service,” records show that his service included 1 month and 14 days of inactive service; 4 months and 16 days of creditable service; and 9 months and 10 days of lost time, for a total of 15 months and 10 days of total service.  Therefore, his contention that he served 26 months of service is without merit. 

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, the applicant voluntarily requested discharge from the Army 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.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.  




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 had 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)                                         AR20080007314



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ABCMR Record of Proceedings (cont)                                         AR20080007314



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