IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20090001689 


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 to an honorable discharge (HD).   

2.  The applicant states, in effect, he is requesting a waiver for an upgrade of his discharge in order to seek medical help through the Department of Veterans Affairs (VA).  

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 11 October 1978.  His record documents no acts of valor, significant achievement or service warranting special recognition.  

3.  On 31 October 1978, while attending One Station Unit Training (OSUT) at Fort Gordon, Georgia for military occupational specialty (MOS) 72E (Telecommunications Center Operator), the applicant departed absent without leave (AWOL) from his unit.  He remained away for 149 days until returning to military control at Fort Sill, Oklahoma, on 29 March 1979.  

4.  On 24 April 1979, 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 31 October 1978 through on or about 29 March 1979.  

5.  On 24 April 1979, 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 if his request for discharge were approved, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service.  In his discharge request, he acknowledged his understanding that by requesting discharge, he was admitting that he was guilty of the charge(s) against him or of a lesser included offense(s) therein contained which 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. 

6.  In his discharge request, the applicant also acknowledged he understood that he could receive an UOTHC discharge, and of the possible effects of that discharge, that he could be ineligible for many or all benefits administered by the VA, that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could encounter substantial prejudice in civilian life as a result of receiving an UOTHC discharge.  

7.  On 10 May 1979, the separation authority approved the applicant's request for discharge 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.  The separation authority further directed that the applicant receive an UOTHC discharge.  On 18 May 1979, the applicant was discharged accordingly, after completing 2 months and 10 days of creditable active military service and accruing 149 days of time lost due to being AWOL.   

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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.  An UOTHC discharge is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD), under honorable conditions 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.

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.

11.  Army Regulation 635-200, 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 HD.  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 request that his UOTHC discharge be upgraded so that he may seek medical assistance through the VA has been carefully considered.  However, while his current medical situation is unfortunate, this factor alone is not sufficiently mitigating to support an upgrade of his discharge at this late date.

2.  The evidence of record confirms 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.  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.  
3.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.  The UOTHC discharge he received was appropriate under the regulatory guidance.  His record documents no acts of valor, significant achievement or service warranting special recognition that would have supported the issuance of a GD or HD by the separation authority at the time of discharge, or that would support an upgrade to an HD or GD now.  As a result, there is an insufficient evidentiary basis to support granting the requested relief. 

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)                                         AR20090001689



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ABCMR Record of Proceedings (cont)                                         AR20090001689


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