IN THE CASE OF:	  

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080018239 


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

2.  The applicant states he has been out of the service for 20 years and has not been in trouble.  He was told that if he stayed out of trouble he could get it upgraded.  He would like to reenlist to protect his family and country.  He has also obtained a general education diploma (GED).

3.  The applicant provides no documentation 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 August 1987, completed training, and was awarded the military occupational specialty 88M (Motor Transport Operator).

3.  On 14 March 1988, a bar to reenlistment was imposed against the applicant for violation of battalion performance standards by driving after consuming alcoholic beverages.

4.  On 28 March 1988, the applicant was reduced to pay grade E-1 in accordance with Army Regulation 600-200, paragraph 6-3c due to conviction by a civil court (driving under the influence).

5.  The applicant was absent without leave (AWOL) from 20 April through
24 April 1988, 4 May through 15 May 1988, and 23 May through 25 May 1988.

6.  A Military Police (MP) Desk Blotter, dated 26 May 1988, shows the applicant was apprehended by the MPs for driving on expired tags, not having proper insurance, driving without a valid automobile registration, driving on post with revoked post driving privileges, driving while impaired, underage drinking, and possession of marijuana.  This report shows his prior offenses include two citations for improper backing, a citation for speeding, his April 1988 AWOL period, and a prior charge of driving while impaired.

7.  On 28 May 1988, court-martial charges were preferred against the applicant for three periods of AWOL, failure to obey a lawful order from a commissioned officer, wrongful use of a controlled substance (marijuana), and possession of a controlled substance (marijuana).  The applicant was placed in military confinement awaiting trial.  

8.  On 8 June 1988, 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.

9.  The discharge authority approved the applicant's request for discharge for the good of the service-in lieu of trial by court-martial and directed he receive a UOTHC discharge.


10.  The applicant was discharged on 29 June 1988 with a UOTHC discharge.  He had completed 8 months and 29 days of creditable service with 43 days of lost time.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 is normally considered appropriate.

   a.  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.

   b.  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 contends that he has been out of the service for 20 years and has not been in trouble.  He was told that if he stayed out of trouble he could get his discharge upgraded.  He would like to reenlist to protect his family and country.

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.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

3.  During the applicant’s short period of service he was AWOL three times, and he was charged with use of marijuana and possession of marijuana.  He also had seven vehicular related offenses.
4.  The mere passage of time is insufficient to warrant upgrading the applicant's characterization of service.  During the discharge process, the applicant acknowledged that he understood there is no automatic upgrading of a less than honorable discharge.

5.  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)                                         AR20080018239



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ABCMR Record of Proceedings (cont)                                         AR20080018239



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