IN THE CASE OF:	 

		BOARD DATE:	  6 November 2008

		DOCKET NUMBER:  AR20080013282 


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 discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) unfairly reflects the quality of his last three months of service as a reflection of his entire service time.  He had reenlisted after three years for 5 more years.  He repaid his bonus as well.

3.  The applicant provides no additional evidence.

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 enlisted in the Regular Army on 24 July 1978.  

3.  The applicant was honorably discharged on 8 March 1981 and immediately reenlisted on 9 March 1981.

4.  On 28 January 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being disrespectful in language and deportment toward his superior noncommissioned officer.

5.  On 21 June 1982, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) from on or about 23 April to on or about      27 April 1982 and from on or about 10 May to on or about 12 May 1982.

6.  On 23 September 1982, court-martial charges were preferred against the applicant charging him with three specifications of being AWOL (from on or about 25 May to on or about 29 May 1982, from on or about 3 September to on or about 15 September 1982, and from on or about 21 September to on or about  22 September 1982); with one specification of failing to go to his appointed place of duty; with one specification of behaving with disrespect towards his superior commissioned officer; with one specification of being disrespectful in deportment towards his superior noncommissioned officer; and with one specification of wrongfully having in his possession some amount of marijuana.

7.  On an unknown date, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf.

8.  On 21 October 1982, the appropriate authority approved the applicant’s request and directed he be issued an Under Other Than Honorable Discharge Certificate.

9.  On 28 October 1982, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with a discharge UOTHC.  He had completed 1 year, 7 months, and     


19 days of creditable active service under the period under review with 33 days of lost time and a total of 5 years, 2 months, and 4 days of creditable active service.

10.  On 26 September 1997, the applicant was issued a Certification of Military Service showing he was honorably discharged from his initial enlistment (24 July 1978 through 8 March 1981).

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 request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  

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 prior honorable service was recognized when he was issued a Certification of Military Service on 26 September 1997. 

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-
martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  Considering the multiple offenses for which he was discharged and his overall quality of service during his last enlistment, the characterization of service the applicant received for his service ending 28 October 1982 was and still is appropriate.



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.




      _______ _XXX   _______   ___
               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)                                         AR20080013282





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ABCMR Record of Proceedings (cont)                                         AR20080013282



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