IN THE CASE OF:	

		BOARD DATE:	  12 November 2008

		DOCKET NUMBER:  AR20080012518 


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, reconsideration of his earlier petition requesting his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that he was young when he accepted the UOTHC discharge without understanding the problems it would cause him later in life.  However, he now knows better and is requesting his discharge be upgraded.

3.  The applicant provides his separation document (DD Form 214, Certificate of Release or Discharge from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC91-05847, on 12 June 1991.

2.  During its original deliberations in this case, the Board determined the applicant’s discharge was proper and equitable, and that the applicant failed to satisfactorily demonstrate by competent evidence that it would be in the interest of justice to grant the relief requested.

3.  The applicant now provides the new argument that he accepted the UOTHC discharge based on the advice of a military lawyer and that he did not fully understand the impact the discharge would have on him later in life.  He states that he went home on leave and there was much turmoil because his parents had separated.  He claims that when he returned, a military lawyer advised him to accept a less than honorable discharge and go back home.  He states that not realizing the problems this would cause him later in life, he accepted the advice of the lawyer and the discharge.

4.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 19 January 1984.  He completed basic combat training and advanced individual training (AIT) at Fort Sill, Oklahoma.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 13B (Cannon Crewman).

5.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in item 18 (Appointments and Reductions), that he was first promoted to the rank of private first class on 1 November 1984, and that this was the highest grade he attained while serving on active duty.  It also shows he was reduced to private/
E-1 on 28 August 1985, and that he held that grade on the date of his discharge. 
Item 9 (Awards, Decorations, and Campaigns) of the applicant’s DA Form 2-1 shows that he earned the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar and Expert Marksmanship Qualification Badge with Hand Grenade Bar during his active duty tenure.  Item 21 (Time Lost) shows he accrued a total of 34 days of time lost during two periods of being absent without leave (AWOL).  The first AWOL period was from 22 February 1985 through 24 February 1985 and the second was from 2 July 1985 through 1 August 1985.

6.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  The record does reveal a disciplinary history that includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 14 March 1985, for being AWOL from on or about 22 February 1985 through on or about 25 February 1985.  His punishment for this offense was a reduction to private/E-2, which was suspended, and 7 days of extra duty and restriction.

7.  On 7 August 1985, a Charge Sheet (DD Form 458) was prepared preferring  court-martial charges against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 2 July 1985 through on or about 2 August 1985 and for violating Article 87 of the UCMJ by missing movement on or about 2 July 1985.

8.  On 7 August 1985, 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 a UOTHC discharge, 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 under the provisions of chapter 10, Army Regulation 635-200.  In his request for discharge, the applicant 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, 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 and he elected not to submit a statement on his own behalf.

9.  On 28 August 1985, the separation authority approved the applicant’s request for discharge and directed that he receive a UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200.  On 10 September 1985, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed 1 year, 6 months, and 19 days of creditable active military service and that he accrued 35 days of time lost due to AWOL.

10.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge and on 6 July 1987 the ADRB, after carefully examining the applicant’s entire record, determined his discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.

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.  The regulation stipulates that a 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 discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (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 was unjust because he did not fully understand the impact it would have on him later in life has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and the evidence of record confirms he 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.  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 the applicant’s rights were fully protected throughout the separation process.

3.  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 issuance of a GD or HD by the separation authority at the time of his discharge, 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 or that would support amendment of the original Board decision in this case.

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 to amend the decision of the ABCMR set forth in Docket Number AC91-05847 dated 12 June 1991.



      ________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)                                         AR20080012518



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ABCMR Record of Proceedings (cont)                                         AR20080012518



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