IN THE CASE OF:	  

		BOARD DATE:	  3 March 2009

		DOCKET NUMBER:  AR20080018741 


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. 

2.  The applicant states, in effect, that his UOTHC discharge was based on dates of a theft incident that were not consistent.     

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and a National Archives (NA) Form 13038 (Certification of Military Service) 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.  On 7 September 1977, the applicant enlisted in the Regular Army (RA) and entered active duty.  He was initially trained in and awarded military occupational specialty (MOS) 52D (Power Generator Equipment Operator/Mechanic) on
6 February 1978.  He was awarded MOS 63C (Track Vehicle Mechanic) on 
11 March 1980.  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to the rank of specialist four (SP4) on 1 May 1979, and that this is highest rank he attained while serving on active duty.  It also shows he was reduced to the rank of private/E-1 (PV1) on 25 August 1980, and this was the rank he held at the time of his discharge.  

4.  The applicant's record shows that during his active duty tenure, he earned the Marksman Marksmanship Qualification Badge with Rifle Bar and Expert Marksmanship Qualification Badge with Hand Grenade Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  On 31 July 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 121 of the Uniform Code of Military Justice (UCMJ) by stealing government property valued at $1,881.00 between 7 January and 21 March 1980.  

6.  On 15 August 1980, 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 him 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 he understood that he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.  The applicant elected not to submit a statement in his own behalf.

8.  On 25 August 1980, 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 26 September 1980, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant upon his discharge confirms he completed 6 months and 16 days during the period covered by the DD Form 214 and a total of 3 years and 20 days of creditable active military service.  His record contains an NA Form 13038 that confirms his honorable active duty service from 7 September 1977 through 10 March 1980.

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 discharge (GD) under honorable conditions, 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.

11.  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 request that his UOTHC be upgraded because the dates of theft were inconsistent was carefully considered.  However, there is insufficient evidence to support his claim.

2.  The evidence of record confirms 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 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 him 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 that would have supported the issue of a GD or HD by the separation authority at the time of his discharge, or that would 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)                                         AR20080018741



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ABCMR Record of Proceedings (cont)                                         AR20080018741



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