IN THE CASE OF:	  

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20090000621 


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, an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that after undergoing an Article 32 investigation with four other Soldiers, he requested a general, under honorable conditions discharge (GD); however, he received a UOTHC discharge instead.  He claims that of the four Soldiers involved, only he received a UOTHC discharge.  He states that it has been 16 years since his discharge and he has managed to live with it and support his family of four sons and one daughter.

3.  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 8 January 1991, and was trained in and awarded military occupational specialty 54B (Chemical Operations Specialist).

3.  The applicant's record shows that he attained the rank of private/E-2 on 8 July 1991 and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure, he earned the National Defense Service Medal, Army Service Ribbon, Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record also shows he was absent without leave for 5 days from 13 through 17 November 1991 and it documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant's record shows that court-martial charges were preferred against him for unauthorized absence, false swearing, violating a general regulation (female in barracks), and communicating a threat.  After charges were preferred, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment under the Uniform Code of Military Justice (UCMJ), of the possible effects of a UOTHC discharge, and of the rights available to him.  Subsequent to receiving this legal counseling, he voluntarily requested to be discharged in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).

5.  In his discharge request, he indicated that he understood that by submitting the discharge request, he was admitting guilt to the charges against him or of a lesser included charge therein contained that also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that he had no desire to perform further service and under no circumstances did he desire rehabilitation.  He also acknowledged his understanding that if his request for discharge were approved, he could be discharged UOTHC and that he understood the possible effects of a UOTHC discharge and that as a result of receiving this discharge he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further stated that he understood that he could face substantial prejudice in civilian life because of receiving a UOTHC discharge.

6.  On 25 June 1992, the applicant's defense counsel submitted a memorandum through the applicant's chain of command to the convening authority requesting the applicant's request for discharge in lieu of court-martial be approved and that the applicant receive a GD.

7.  In his memorandum, counsel indicated, in effect, that a UOTHC discharge would be too harsh and that had it not been for the applicant being falsely accused of rape, he likely would not have committed the offenses for which court-martial charges were preferred, which were unauthorized absence, false swearing, and violating a general regulation, offenses to which the applicant had admitted guilt.  He indicated that the applicant was requesting a GD and not an honorable discharge (HD), and that a UOTHC discharge was not warranted based on the circumstances surrounding the case.  He stated that the applicant was recently married and it would be less difficult for him to start life over with a GD.

8.  On 8 July 1992, the separation authority approved the applicant's request for discharge and directed that the applicant receive a UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 5 August 1992, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he held the rank of private/E-1 and completed a total of 1 year, 6 months, and 28 days of creditable active military service.

9.  On 8 November 1996, the Army Discharge Review Board, after careful consideration of the applicant's military records and all other available evidence, determined that the applicant was properly and equitably discharged and it voted to deny his request for an upgrade of his discharge.

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, 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 contention that his discharge was too harsh and that it should be upgraded has been carefully considered.  However, the evidence of record confirms that the applicant was charged with the commission of an offense(s) 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.

2.  The applicant's discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  The applicant voluntarily requested discharge to avoid a trial by court-martial that could have resulted in his receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance.  Although his post-service conduct and aspirations are noteworthy, these factors alone do not support an upgrade of his discharge.  His military record documents no acts of valor, significant achievement, or service warranting special recognition and as a result, it is it is clear his undistinguished overall record of service did not support the issuance of a GD or HD by the separation authority at the time of his discharge and it does not support an upgrade now.

3.  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)                                         AR20090000621



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ABCMR Record of Proceedings (cont)                                         AR20090000621



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