IN THE CASE OF:	  

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080010704 


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 is not in good health and does not want to die with this discharge.  He states that he served his country to the best of his ability and would like to have his record cleared.   

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 record shows that he initially enlisted in the Regular Army and entered active duty on 19 December 1972.  On 26 December 1974, while serving in Germany, the applicant was honorably discharged for the purpose of immediate reenlistment, and on 27 December 1974, he reenlisted for 3 years.  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in Item 6 (Military Occupational Specialties) that he held and served in the primary military occupational specialty (MOS) 13B (Field Artillery Crewman).  Item 9 (Awards, Decorations & Campaigns) shows that he earned the National Defense Service Medal (NDSM), Army Good Conduct Medal (AGCM), and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  

4.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 shows he was promoted to the rank of specialist four (SP4) on 9 August 1974, and that this was the highest rank he attained while serving on active duty.  It also shows he was reduced to prviate/E-1 (PV1) on 14 March 1978.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:  30 January 1973, for dereliction of duty; and 16 April 1974, for being absent without leave (AWOL) from 26 March through 8 April 1974.  

6.  On 16 November 1977, the applicant departed AWOL from his unit at 
Fort Knox, Kentucky, and on 15 December 1977, he was dropped from the rolls (DFR) of the Army.  He remained away for 76 days until being apprehended by civil authorities and returned to military control on 31 January 1978.  

7.  On 14 February 1978, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 16 November 1977 through on or about 31 January 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 UOTHC discharge.  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.  

8.  In his discharge request, the applicant indicated that he understood 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 14 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.  On 21 March 1978, the applicant was discharged accordingly.  The separation document (DD Form 214) issued to the applicant upon his discharge confirms he completed a total of 5 years and 4 days of creditable active military service, and that he accrued 89 days of time lost due to AWOL.   

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 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 is now in poor health and served his country to the best of his ability was carefully considered.  However, while his current situation is unfortunate, this factor alone is not sufficiently mitigating to support an upgrade of his discharge.  

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 on two separate occasions prior to committing the AWOL offense that led to his discharge.  

3.  The evidence of record also confirms the applicant 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.  

4.  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 was not sufficiently meritorious to support the issue of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade now.  

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)                                         AR20080010704



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ABCMR Record of Proceedings (cont)                                         AR20080010704



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