IN THE CASE OF:
BOARD DATE: 25 September 2008
DOCKET NUMBER: AR20080011970
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 that his under other than honorable conditions (UOTHC) discharge be upgraded to honorable.
2. The applicant states that he was told his discharge would automatically be upgraded in 6 months.
3. The applicant provides a letter he wrote to his elected representative in which he stated that he would not have accepted his discharge if he had not been promised it would be automatically upgraded in 6 months.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the U.S. Army Reserve and entered active duty on 10 September 1979.
3. On 26 March 1980, court-martial charges were preferred against the applicant for being absent without leave (AWOL) for the period 4 December 1979 to 20 March 1980.
4. On 28 March 1980, the applicant requested discharge in lieu of trial by court-martial. In that request he acknowledged his guilt to the offense charged, that he could receive an UOTHC discharge, and he was advised of the adverse affects of an UOTHC discharge. He also stated that he had been afforded the opportunity to consult with appointed counsel for consultation prior to making his request.
5. As part of the applicants request for discharge, he signed a counseling statement. In that statement he was told I also must warn you against widespread rumors that a discharge under other than honorable conditions can easily be changed to an honorable discharge after your release, or that after a certain time it automatically becomes honorable. This is totally false. The counseling statement then informed the applicant of the two agencies empowered to upgrade discharges and provided the number of discharges upgraded by those agencies during a 4-year period.
6. On 1 July 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniformed Code of Military Justice, for failure to go at the time prescribed to his appointed place of duty, and for failure to obey a lawful order.
7. On 26 August 1980, the applicants personnel officer forwarded the applicants request. In the forwarding correspondence, the applicants personnel officer stated that the applicant desired a discharge because of his dislike for his military occupational specialty (MOS). The personnel officer also indicated the applicant stated he would go AWOL again if returned to duty in the same MOS.
8. The applicants request was approved by the appropriate authority and he was issued an UOTHC discharge on 22 September 1980.
9. 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 guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. Contrary to the applicants contention that he was promised that his discharge would automatically be upgraded in 6 months, he was specifically advised that there was no automatic upgrading of discharges. He was also provided the number of discharges which were upgraded during a 4-year period so he could see how few discharges were upgraded.
2. The applicant was AWOL for 3 1/2 months, and he accepted NJP for two offenses after he requested discharge in lieu of trial by court-martial. Such misconduct certainly warranted a UOTHC discharge.
3. In view of the foregoing, there is no basis for granting the applicants request.
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) AR20080011970
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