IN THE CASE OF:	  

		BOARD DATE:	  14 July 2009

		DOCKET NUMBER:  AR20090001590 


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, he would like his UOTHC discharge upgraded in order to advance his career options.  He further states that at the time of his discharge, his mother was hospitalized with mental illness and he was needed at home.   

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 2 November 1977.  He successfully completed One Station Unit Training (OSUT) training at Fort Sill, Oklahoma, and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember) on 
9 February 1978.  His record shows he earned the Marksman Marksmanship Qualification Badge with Rifle Bar and First Class Qualification Badge with Grenade Bar during his active duty tenure.  The record documents no acts of valor or significant achievement.  

3.  On 17 April 1978, the applicant departed absent without leave (AWOL) from his unit in Hawaii, and on 16 May 1978, he was dropped from the rolls (DFR) of the organization.  He remained away for 106 days until returning to military control at Fort Knox, Kentucky, on 31 July 1978.  

4.  On 7 August 1978, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 17 April through on or about 1 August 1978. 

5.  On 8 August 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge and of the procedures and rights available to him.  Subsequent to this legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  In his request for discharge, the applicant acknowledged that by submitting the discharge request, he was acknowledging guilt of the charge against him or of a lesser included offense therein that also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that under no circumstances did he desire further rehabilitation because he had no desire to perform further military service.  He also confirmed that he understood that if his discharge request was approved, he could receive an UOTHC discharge.  

6.  The applicant also acknowledged in his discharge request that he had been advised and understood the possible effects of an UOTHC discharge and that as a result of receiving such a discharge, he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprive of his rights and benefits as a veteran under both Federal and State law.  He finally acknowledged he understood that he could face substantial prejudice in civilian life as a result of receiving an UOTHC discharge. 

7.  On 30 August 1978, the separation authority approved the applicant’s discharge request and directed that he be issued an UOTHC discharge.  On 
25 September 1978, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he completed a total of 7 months and 10 days of creditable active military service and that he accrued 106 days of time lost due to being AWOL.  It also shows that he was separated under the provisions of chapter 10, Army Regulation 635-200, by reason of administrative discharge conduct triable by court-martial, and that he received an UOTHC discharge.  

8.  On 26 October 1981, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s records and all other available evidence, determined the applicant’s discharge was proper and equitable.  As a result, it voted not to change the character of or reason for his discharge.  

9.  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.  It further indicates that an UOTHC discharge normally is appropriate for a Soldier who is discharged under these provisions; however, the separation authority may direct the issuance of a general discharge (GD), under honorable conditions discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

10.  Army Regulation 635-200, paragraph 3-7a, provides that an HD is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Paragraph 3-7b provides that a GD is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded in order for him to improve his career opportunities was carefully considered.  However, the evidence of record confirms that the applicant was charged with the commission of an offense 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.  In his request for discharge, the applicant admitted guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The record further shows the applicant voluntarily requested discharge in order to avoid a court-martial that could have resulted in him receiving a punitive discharge only after he had consulted with legal counsel and confirmed that he fully understood the ramifications of receiving an UOTHC discharge.  His record documents no acts of valor or significant achievement and it is clear that his short and undistinguished record of service did not support the issue of a GD or HD by the separation authority at the time of his discharge, and it is equally clear it does not support an upgrade now.  

4.  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)                                         AR20090001590



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ABCMR Record of Proceedings (cont)                                         AR20090001590


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