IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20080019546 


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 (UOTHC) be upgraded to an honorable discharge (HD).    

2.  The applicant states, in effect, that he made an error in judgment that led to his leaving the Army, which began with his marrying someone he did not really know.  He requested to leave the Army with less than 1 year to go because he missed his wife.  He now looks back on this as poor judgment and he laughs at himself for the poor decision he made.  He states he cannot believe how ignorant he was at the time.  He claims he enjoyed his time in the Army and if he could go back in time and know what he knows now, he would have done things completely different.  He states that something good did result from his leaving the Army, which was that he returned to school and became a nurse thanks to the experience he gained from being a combat medical corpsman/medical specialist.  

3.  The applicant requests that his UOTHC discharge be upgraded to an HD.  He states that he truly apologizes to the Army for his ignorance in choosing to leave the Army with 1 year remaining.  He claims he was never in trouble while he was in the Army and he made a bad move back then for a wife who eventually ran off with his son, leaving him with a ruptured ulcer that nearly killed him.  He claims he learned from his past and preaches to the younger generation to never give up and to not be a quitter.  

4.  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 27 October 1987, and was trained in and awarded military occupational specialty (MOS) 91A (Medical Specialist).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to specialist (SPC) on 1 November 1988, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private/E-1 (PV1) on 3 April 1989.  It further shows that he earned the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar and Second Class Hand Grenade Badge.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's record shows that he departed absent without leave (AWOL) from his unit in Korea on 14 January 1989 and that he remained away for 
59 days until returning to military control on 14 March 1989, at Fort Knox, Kentucky. 

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by 
court-martial on 25 May 1989, after completing 1 year, 4 months, and 29 days of creditable active military service and accruing 59 days of time lost due to AWOL. 

6.  There is no evidence that indicates that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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) if such is merited by the Soldier's overall record during the current enlistment.  An 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 contention that her discharge should be upgraded was carefully considered.  However, there is insufficient evidence to support his claim. 

2.  The evidence of record does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s DD Form 214 confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by
court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The record shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.  The UOTHC he received was normal and appropriate under the regulatory guidance, and his overall record of service was not sufficiently meritorious to support the issue of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade now.  

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)                                         AR20080019546



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080019546



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1