IN THE CASE OF:	  

	BOARD DATE:	  17 June 2008

	DOCKET NUMBER:  AR20080005208 


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, reconsideration of his request that his under other than honorable conditions (UOTHC) discharge be upgraded.  

2.  The applicant states, in effect, that he has turned his life around and is requesting clemency.  

3.  The applicant provides character reference letters and a police report in support of his reconsideration request.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060012554, on 19 April 2007.  

2.  During its original review of the case, the Board determined the applicant's discharge was proper and equitable, and that it accurately reflected the applicant's overall record of service.  It further found that the applicant's record showed a history of drug abuse and total disregard for military authority, and concluded that based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance for Army personnel.  


3.  The applicant provides three character reference letters from three church pastors, who all attest to the applicant's sound character, integrity, and post service accomplishments as a member of the Baptist church.  He also provides an employment history for 1992 through 2004, and a police report that shows two charges in 1996, and no other offenses.  

4.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 3 October 1983.  His Personnel Qualification Record 
(DA Form 2-1) shows he was trained in and awarded military occupational specialty 76Y (Supply Specialist).  It also shows that he was promoted to specialist four (SP4) on 1 October 1985, and that this was the highest grade he held while serving on active duty.  It also shows that he earned the following awards during his active duty tenure:  Army Good Conduct Medal; Army Service Ribbon; Overseas Service Ribbon; and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The record documents no acts of valor, significant achievement, or service warranting special recognition.   

5.  On 29 April 1998, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine.  His punishment for this offense was a reduction to private first class (PFC), forfeiture of $205.00, and 14 days of restriction and extra duty.   

6.  On 9 August 1988, a Charge Sheet (DD Form 458) was prepared preferring court-martial charges against the applicant for violating the following Articles of the UCMJ as indicated:  Article 86, by failing to go to his appointed place of duty at the prescribed time on or about 16 May 1988; Article 91 (4 Specifications) by being disrespectful in language toward superior noncommissioned officers (NCOs) and by disobeying lawful orders; Article 89, by being disrespectful toward a superior commissioned officer; Article 112a (2 Specifications)  by wrongfully using cocaine between 3 April and 3 May 1988, and between 1 July and 
1 August 1988; and Article 134, by wrongfully impersonating a NCO.

7.  On 10 August 1988, 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, the significance of a bad conduct or dishonorable discharge, and of the possible effects of an under other than honorable conditions (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.  


8.  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.  He further indicated that he understood that if his request for discharge were approved, he could receive an 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 Department of Veterans Affairs (VA).  He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life because of an UOTHC discharge.  

9.  On 30 September 1988, 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 an UOTHC discharge.  On 7 October 1988, the applicant was discharged accordingly.  The separation document (DD Form 214) issued to the applicant upon his discharge confirms he completed a total of 5 years and 5 days of active military service.  

10.  On 13 March 1996, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's case, determined his discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.

11.  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.  An 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 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 based on his post service conduct was carefully considered.  However, while his post service accomplishments are noteworthy, this factor alone is not sufficiently mitigating to support granting the requested relief.   

2.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history.  

3.  The evidence of record confirms the applicant was charged with the commission of offenses 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 charges against him, or of lesser included offenses, 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.  

4.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance, and his overall record of service clearly did not support the issue of a GD or HD by the separation authority at the time, 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 or that would support amendment of the original Board decision in this case.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20060012554, dated 19 April 2007.  




       _    __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)                                         AR20080005208



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ABCMR Record of Proceedings (cont)                                         AR20080005208



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