IN THE CASE OF:	  

		BOARD DATE:	        07 MAY 2009

		DOCKET NUMBER:  AR20090001158 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, the evidence against him was insufficient; the crime was never proven; he was not guilty; and he was in the wrong place at the wrong time.  He adds an HD would help him function in society.

3.  The applicant provides, in support of this application:

	a.  his DD Form 214 (Certificate of Release or Discharge from Active Duty); and

	b.  four unsigned letters of support.

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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for 6 years on 28 May 1982.  On 9 August 1982, he was discharged from the DEP and enlisted in the Regular Army for 3 years on
10 August 1982.  

3.  Following One-Station Unit Training (OSUT) at Fort Sill, OK, the applicant was awarded military occupational specialty (MOS) 13B (Cannoneer) and assigned to a unit at Fort Sill.

4.  In December 1983, the applicant was transferred to Germany and assigned to B Battery, 1st Battalion, 76th Field Artillery, 3rd Infantry Division.

5.  The applicant’s record does not contain a copy of his administrative discharge packet.  However, the applicant’s record contains a properly constituted DD Form 214 which identifies the reason and characterization of his discharge.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial on 17 April 1985 and issued an UOTHC discharge.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant would have been required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.

6.  The unsigned letters of support provided by the applicant portray him as an asset to their community.  He is friendly, ambitious, hardworking, versatile, knowledgeable, and a good man with a good heart, among other attributes.

7.  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 discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded to an HD.

2.  Court-martial charges were preferred against the applicant for unknown reasons.  Had he been tried and convicted, he could have received a punitive 
discharge and a sentence to confinement.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant's voluntary request for a chapter 10 discharge tends to show he wished to avoid the court-martial and the punitive discharge that he could have received.

3.  The applicant requested chapter 10 discharge in lieu of trial by court-martial and his request was approved.  Therefore, it is evident why his crime was never “proven”; he never went to trial.

4.  The applicant’s unsigned letters of support have been noted.  The letters portray the applicant as an asset to their community.  He is friendly, ambitious, hardworking, versatile, knowledgeable, and a good man with a good heart, among other attributes.  However, the letters alone are insufficient to justify a discharge upgrade.

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.  Therefore, there is no basis for granting the applicant's request relief.

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.



      _________XXX______________
               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)                                         AR20090001158



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ABCMR Record of Proceedings (cont)                                         AR20090001158



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