IN THE CASE OF:	  

		BOARD DATE:	       18 November 2008

		DOCKET NUMBER:  AR20080013765 


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 that honorable conditions (UOTHC) discharge be upgraded to general, under honorable conditions.

2.  The applicant states, "The discharge was just at the time issued.  He was young and dumb at that time and did not expect to live past his 20th birthday.  He understands that after 10 years he could request an upgrade."  He requests that his post service accomplishments be considered.  He has been a long-haul truck driver who for the past 14 years has specialized in hauling military equipment.  He currently holds a Department of Defense Secret clearance.  He is an active member of The American Legion and is serving as the Judge Advocate for his American Veterans (AMVETS) post.

3.  The applicant provides four letters of appreciation, a newspaper article, and his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 entered active duty on 18 September 1979, reenlisted on 2 September 1982, and was promoted to sergeant (E-5) on 12 September 1982.

3.  During his first enlistment the applicant had 1 day of AWOL.

4.  The applicant's Noncommissioned Officer Evaluation Report (NCOER) for the period October 1982 through February 1983 shows he was rated with the highest possible ratings (50 out of 50 for professional competence and 35 out of 35 for professional standards).

5.  On 18 May 1983, the applicant went AWOL (absent without leave) and remained absent until he returned to military control on 25 March 1987.

6.  Court-martial charges were preferred for the period of AWOL from 18 May 1983 through 24 March 1987; 1,407 days.

7.  On 30 March 1987, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

8.  The applicant was placed on voluntary excess leave on 30 March 1987.

9.  On 7 April 1987, the discharge authority approved the applicant's request and directed he be discharged under other than honorable conditions and that in accordance with regulation he be reduced to the lowest enlisted grade.  

10.  The applicant was discharged on 4 May 1987.  He had 3 years, 9 months, and 10 days of creditable service with 1,407 days of lost time due to AWOL and 36 days of excess leave.

11.  Other than the 1 day of AWOL during his first enlistment the applicant had no discreditable information or negative counseling in his record prior to his extended AWOL.

12.  The applicant provided the following documents in support of his application:

	a.  a 12 April 1994 letter indicating that the applicant's team was awarded the Western Regional Safety Award;

	b.  a 22 April 1994 letter from the president of Landstar/Ligon citing the applicant's team with their top safety award;

	c.  a 29 September 1994 letter of appreciation from the Military Traffic Management Command Oakland, California for his efforts and assistance on 21 September 1994;

	d.  a 1 August 2001 letter from Pacific Marine Propellers stating that only through the extraordinary effort of the applicant and his supervisor, an emergency change of delivery of a critical propeller was successfully made on the required delivery date; and

	e.  a newspaper article showing that the applicant donated his time and semi-truck to transport a howitzer from Aniston Army Depot in Aniston, Alabama to Silverton, Idaho for the Silver Valley Veterans Memorial. 

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  In pertinent part it provides at:

	a.  Paragraph 3-7a that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty;  

	b.  Paragraph 3-7b that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;  

	c.  Paragraph 3-7c that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier;  

	d.  Paragraph 3-7c(7) for issuance of an UOTHC for discharges issued under the provisions of chapter 10 of this regulation; and

	e.  Chapter 10 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

15.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice (UCMJ).  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offense that led to his discharge.

3.  While it is commendable that the applicant has found a valuable nitch in society, is gainfully employed, and performing a service to the nation and to other people; his post-service activities are insufficient to outweigh the significant period of lost time he incurred while on active duty.  The applicant had more noncreditable or lost time than he had of honorable creditable service.  

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.

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)                                         AR20080013765



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ABCMR Record of Proceedings (cont)                                         AR20080013765



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