IN THE CASE OF:	  

		BOARD DATE:	       30 April 2009

		DOCKET NUMBER:  AR20090000185 


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 discharge be upgraded to honorable.

2.  The applicant states he did his complete tour of duty.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 in the Regular Army on 10 October 1979 on a three year active service obligation.  He completed training and was awarded the military occupational specialty 11C (Indirect Fire Infantryman) with assignment to duty in Germany.
3.  The applicant requested a curtailment of his overseas assignment due to family problems, on 17 December 1981.  On 9 February 1982 his request was denied because he had not confirmed that he had an extreme personal hardship.

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, as follows:

	a.  on 2 December 1981, for disobeying a lawful order from a noncommissioned officer (NCO);

	b.  on 26 July 1982, for dereliction of duty by leaving his weapon unsecured; and 

	c.  on 7 August 1982, for breaking restriction.

5.  The applicant went AWOL (absent without leave) on 15 September 1982 and remained absent until 25 January 1983.

6.  A 27 August 1982 DA Form 4384 (Commander's Report of Inquiry/ Unauthorized Absence) indicates the applicant had received NJP on 26 July 1982 for dereliction of duty and on 7 August 1982 for breaking restriction.  The commander also noted the applicant was charged with theft on 18 August 1982 and had been AWOL since 16 September 1982.  There is no available documentation of the resolution of the investigation on the theft charge.

7.  On 27 January 1983, court-martial charges were preferred for his period of AWOL.

8.  On 28 January 1983, 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 under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.

9.  The discharge authority approved the applicant's request and directed the applicant be reduced to the lowest enlisted grade and issued an UOTHC discharge.

10.  The applicant was discharged under other than honorable conditions on 24 February 1983.  He had 3 years and 16 days of creditable service with 122 days of lost time.  His DD Form 214 shows that he was placed on excess leave for 23 days and was retained on active duty for 16 days to complete his separation processing under Army Regulation 635-200.

11.  The record shows the highest rank attained was private first class (E-3).

12.  The record contains no indication that the applicant was recommended for or received any personal award, decoration, or citation during his period of service.

13.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.   It provides the following:

	a.  A Soldier will not be discharged or released until final disposition of the court-martial charges has been made;

	b.  Chapter 3, as in effect at that time, outlines the criteria for characterization of service as follows at:

		1)  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty;  

		2).  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;  

		3)  Paragraph 3-7c states that an UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier; and 

		4)  Paragraph 3-7c(7) specifically addresses issuance of an UOTHC characterization for discharges issued under the provisions of chapter 10 of that regulation; and

	c.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  A Soldier will not be discharged or released until final disposition of the court-martial charges has been made.

15.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his discharge be upgraded to honorable because he served his complete tour of duty.

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.  There is no indication that the request was made under coercion or duress.

3.  The applicant had completed just over a year and a half of service before his first NJP.  He then completed a year and five months without a recorded incident; however, this was followed in quick succession by three additional NJP's, a charge of theft, and his 122 days of AWOL. 

4.  The applicant did not meet the standards of acceptable conduct and performance of duty warranting an honorable or general discharge.  

5.  Regulations provide that a UOTHC is normally to be issued for discharges under Army Regulation 635-200, chapter 10.  The applicant's service was not so meritorious as to outweigh the offenses that led to his discharge.  Therefore it is not appropriate to upgrade the characterization of his service. 

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)                                         AR20090000185





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ABCMR Record of Proceedings (cont)                                         AR20090000185



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