IN THE CASE OF:	  

		BOARD DATE:	        25 September 2008

		DOCKET NUMBER:  AR20080012942 


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 had a serious drug problem during his active duty service.

3.  The applicant provides a Request Pertaining to Military Record (Standard Form 180) 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.


3.  The applicant's military personnel records show he enlisted and entered active duty on 13 June 1977.  He completed basic combat and advanced individual training (AIT) at Gordon, Georgia.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 36C (Telephone Installer and Lineman).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments & Reductions), that he was advanced to private first class (PFC) on 1 April 1978, and this is the highest rank he held while serving on active duty.  It also shows that he was reduced to the rank of private/E-1 (PV1) on 18 December 1978.  Item 9 (Awards and Decorations) shows he earned the Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) and Grenade Bars during his active duty tenure.  Item 21 (Time Lost Under Section 972, Title 10, United States Code) shows the applicant was absent without leave (AWOL) during the following three separate periods:  26 October-13 November 1977; 
23 May-21 June 1978; and 14 August-26 November 1978.

5.  The applicant’s record also shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 December 1977, for being AWOL from on or about 26 October to on or about 14 November 1978.

6.  On 8 December 1978, 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 23 May to on or about 22 June 1978, and from on or about 14 August to on or about 14 November 1978.

7.  On 8 December 1978, the applicant consulted 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.  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 Under Other Than Honorable Conditions Discharge.


8.  On 18 December 1978, 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 26 December 1978, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed 1 year, 1 month, and 13 days of creditable active military service and that he accrued 154 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.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded 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 a punitive discharge. After consulting legal counsel, the applicant voluntarily requested discharge from 
the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to 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 of his discharge to either general or honorable 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)                                         AR20080012942



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ABCMR Record of Proceedings (cont)                                         AR20080012942



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