IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080012445 


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 an honorable discharge (HD). 

2.  The applicant states, in effect, that while performing guard duty during basic training, he was assaulted by two military police officers without cause, and this incident has caused him mental anguish for years.  He also states that thinking he could be killed by the men with whom he served; he requested to be discharged the very next day.  

3.  The applicant provides a self-authored statement and his DD Form 214 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 he enlisted in the Regular Army and entered active duty on 20 February 1979.  While attending basic combat training at 
Fort Jackson, South Carolina, the applicant departed absent without leave (AWOL) from his unit on 31 March 1979.

3.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments & Reductions), that private/E-1 (PVT) was the highest rank he held while serving on active duty.  Item 21 (Time Lost Under Section 972, Title 10, United States Code) shows the applicant was AWOL from 31 March to 4 July 1979.

4.  On 17 July 1979, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violation of Article 86 of the UCMJ by being AWOL from on or about 31 March to on or about 5 July 1979.

5.  On 19 July 1979, 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 UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him. 
Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200.

6.  In his request for discharge, he acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC discharge.

7.  The applicant also provided a statement in his own behalf with his request for separation.  He stated that he joined the Army because it was the only way out for him given his inability to find a job at a time while the State was pressuring him to provide child support.  However, he indicated that basic training was too much for him to handle and he wanted out.

8.  On 2 August 1979, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200.  On 14 August 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed 2 months of creditable active military service and that he accrued 96 days of time lost due to AWOL.

9.  The applicant's record is void of any indication that he petitioned 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.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because he received it through no fault of his own as a result of being assaulted by two military police officers has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with punitive discharge.  After consulting with legal counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the offenses under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  As a result, an upgrade to his discharge would not be appropriate.

3.  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 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)                                         AR20080012445



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ABCMR Record of Proceedings (cont)                                         AR20080012445



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