IN THE CASE OF:	  

		BOARD DATE:	  3 September 2008

		DOCKET NUMBER:  AR20080007822 


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.  

2.  The applicant states, in effect, that he was young and stupid at the time and had some family problems.  He now requests an upgrade of his discharge.  

3.  The applicant provides no additional 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 record shows that he initially enlisted in the Regular Army and entered active duty on 26 February 1971, and was trained in and awarded military occupational specialty (MOS) 71B (Clerk Typist).  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that he was promoted to specialist five (SP5) on 4 February 1974, and that this is the highest rank he held while serving on active duty.  It also shows that he was reduced to private/E-1 (PV1) on 8 August 1980, and that this is the rank he held on the date of his discharge.  His record shows that during his active duty tenure, he earned the National Defense Service Medal, Army Good Conduct Medal (2nd Award), and the Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 on 13 January 1978, for three specifications of failing to go to his appointed place of duty at the prescribed time and for violating a lawful general regulation.  His punishment for these offenses was a reduction to specialist four (SP4), which was suspended for 179 days.  

5.  On 30 January 1978, the applicant departed absent without leave (AWOL) while en route to an assignment in Germany.  He remained away for 899 days until returning to military control at the Personnel Control Facility, Fort Knox, Kentucky, on 17 July 1980.  

6.  On  22 July 1980, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by absenting himself without authority from on or about 30 January 1978 through on or about 17 July 1980.

7.  On 24 August 1980, the applicant consulted with legal counsel and was advised that the Government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial.  Counsel further informed the applicant that without these records, he could not completely advise the applicant.  Having been duly advised all of this, the applicant knowingly, willingly, and voluntarily declared he had been AWOL from
20 January 1978 through 17 July 1980, and that he was making this admission for administrative purposes only so he could process out of the Army.  He further indicated that he understood that in so doing, he could be given an UOTHC discharge.  He further acknowledged that legal counsel had explained to him to his complete understanding and satisfaction, all the legal and social ramifications of that type of discharge and what it would mean to him in the future.  
8.  On 3 September 1980, the applicant was discharged, in the rank of PV1, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, and received an UOTHC discharge.  The separation document (DD Form 214) he was issued at the time confirms he completed a total of 7 years,
1 month, and 1 day of creditable active military service, and that he had accrued 899 days of time lost due to AWOL.   

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) 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 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 discharge should be upgraded because he was experiencing family problems, and because he was young and stupid at the time was carefully considered.  However, the record shows he had completed more than 7 years of service and was over 27 years of age at the time of his discharge.  The record also is void of any indication that he was suffering from family problems that were severe enough to mitigate his extended period of AWOL.  As a result, these factors are not sufficiently mitigating to support granting the requested relief at this late date.   

2.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal a disciplinary history that includes his acceptance of NJP, and an extended period of AWOL.  The evidence of record also confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. It further shows that after consulting with defense counsel, the applicant admitted guilt to the offense and voluntarily requested discharge from the Army in lieu of trial by court-martial.  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 the issuance 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
      
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)                                         AR20080007822



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ABCMR Record of Proceedings (cont)                                         AR20080007822


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