IN THE CASE OF:	  	

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080017200 


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 to honorable. 

2.  The applicant states, in effect, that he began having marital problems while serving in Germany and believed returning his wife to United States would help save his marriage, and he went absent without leave (AWOL) to do this.  He claims he has been a model citizen since his discharge.  He is applying for a job with military aircraft and is requesting an upgrade of his discharge.  

3.  The applicant provides his separation document (DD Form 214), a third-party statement, and college transcripts 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 records show he enlisted into the Regular Army and entered active duty on 7 January 1986, and that he was trained in and awarded military occupational specialty (MOS) 19D (Cavalry Scout).  His record shows the highest grade he attained while serving on active duty was private first class (PFC)/E-3. 

3.  The applicant's record shows that during his active duty tenure, he earned the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His record documents no acts of valor or significant achievement. 

4.  On 21 April 1987, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 5 February to on or about 20 April 1987. 

5.  On 29 April 1987, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UOTHC discharge, and of the rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request, he acknowledged that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all Veterans Administration (VA) [now known as the Department of Veterans Affairs] benefits, he could be deprived of his rights and benefits as a veteran under both Federal and State law, and he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge.  
6.  On 6 May 1987, the separation authority approved the applicant's discharge request and directed the applicant receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 19 June 1987, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant at the time confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  It further shows that he had completed a total of 1 year, 2 months, and 28 days of creditable active military service and that he had accrued 74 days of time lost due to being AWOL.  

7.  There is no evidence showing that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  The applicant provides a third-party statement from an assistant in the Human Resources Department at his place of employment.  This individual states the applicant has been employed with the company since 2004, and that he is always dependable, courteous, and willing to do anything asked.  She further states the applicant is considered an outstanding and valuable employee.

9.  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 does allow the issue of a GD or HD if the separation authority determines it is warranted based on the member's overall record of service; however, an UOTHC discharge is normally considered appropriate for members separated under this provision of the regulation.  

10.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  Army Regulation 635-200, paragraph 3-7b provides that a general, under honorable conditions discharge (GD) 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 HD.  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 UOTHC discharge should be upgraded to honorable based on his good post service conduct was carefully considered.  However, by regulation, an UOTHC discharge is normally appropriate for members separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  However, the separation authority may direct a GD or HD be issued if such is merited by the Soldier's overall record during the current enlistment.  In this case, the applicant's record is void of any acts of valor or significant achievement that would have warranted the issue of a GD or HD by the separation authority at the time of his discharge, or that would an upgrade at this time.  

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 with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It further shows he was processed for separation in lieu of trial by court-martial at his own request in order to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive an UOTHC, which was consistent with regulatory policy.

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 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)                                         AR20080017200



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017200


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1