IN THE CASE OF:	  

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080017038 


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 discharge be upgraded.

2.  The applicant states, in effect, that for the most part, he served honorably, which included service in the Republic of Vietnam (RVN).  He claims he was a good Soldier.

3.  The applicant provides no documentary evidence 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 that he enlisted in the Regular Army and entered active duty on 24 February 1970, and was trained in and awarded military occupational specialty 11B (Infantryman).  His record shows he was promoted to private first class (PFC) on 14 January 1971 and that this is the highest rank he attained while serving on active duty.

3.  The applicant's record shows he arrived the RVN on or about 4 November 1971.  His record documents no acts of valor or significant achievement.  The record does reveal a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on at least 6 separate occasions between November 1970 and June 1972 for a myriad of disciplinary infractions and acts of misconduct that included being absent without leave (AWOL), being disrespectful to superiors, drinking on duty, and wrongfully discharging a weapon.

4.  The applicant's record also documents two separate Special Court-Martial (SPCM) convictions:  the first on 10 September 1970 for violating Article 86 of the UCMJ by being AWOL from 3 through 28 August 1970, the second SPCM conviction was on 28 September 1971 for violating Article 86 of the UCMJ by being AWOL from 12 through 24 February 1971 and from 24 through 25 August 1971.  His record documents four separate periods of AWOL between 3 August 1970 and 29 July 1981 that total 3,653 days of time lost.

5.  On 11 August 1981, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 2 August 1972 through on or about 30 July 1981.

6.  On 12 August 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum punishment authorized under the UCMJ, and of the possible effects of a UOTHC discharge.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  In his discharge request, the applicant indicated that he understood that by submitting the request for discharge, he was acknowledging his guilt of the charge against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.

7.  The applicant further indicated in his discharge request that he understood that if his request for discharge were approved, he could receive a UOTHC discharge which could result in his being deprived of many or all Army benefits, that he would be administratively reduced to the lowest enlisted grade, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He further acknowledged his understanding that he could    expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.  The applicant submitted a statement in his own behalf in which he indicated that although he was not without fault during his military service, all the charges against him were for the same thing, being AWOL.  He indicated he was a Vietnam veteran and that he believed the country owed him more than a less than honorable discharge.

8.  On 31 August 1981, the separation authority approved the applicant's discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service and directed the applicant receive a UOTHC discharge and be reduced to the lowest enlisted grade.  On 17 September 1981, the applicant was discharged accordingly.  The separation document (DD Form 214) issued to the applicant upon his discharge confirms he completed a total of 2 years, 5 months, and 19 days of creditable active military service and that he accrued 3,653 days of time lost due to AWOL.

9.  There is no indication that the applicant applied to the Army Discharge Review Board 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 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, under honorable conditions 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 request that his UOTHC be upgraded because he served in the RVN and was generally a good Soldier was carefully considered.  However, there is insufficient evidence to support his claim.

2.  The evidence of record does confirm that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that 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 that the rights of the applicant were fully protected throughout the separation process.

3.  The record also shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance.  His record documents no acts of valor or significant achievement; however, it does include a significant disciplinary history that includes his acceptance of NJP on five separation occasions for a myriad of disciplinary infractions that were not limited to AWOL, two SPCM convictions, and his accrual of 3653 days of time lost due to AWOL.  As a result, his overall record of service clearly did not 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.

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)                                         AR20080017038



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ABCMR Record of Proceedings (cont)                                         AR20080017038



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