IN THE CASE OF:	  

		BOARD DATE:	  19 May 2009

		DOCKET NUMBER:  AR20090001859 


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

2.  The applicant states, in effect, that he was young Soldier who was "railroaded" out of the Army.

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 he enlisted in the Regular Army and entered active duty on 6 August 1980.  He was trained in, was awarded, and served in military occupational specialty (MOS) 76C (Equipment Records and Parts Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to specialist four (SP4)/E-4 on 1 November 1981, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced to private (PV1)/E-1 on 15 April 1985.

4.  Item 21 (Time Lost Under Section 972, Title 10, USC) of the applicant’s DA Form 2-1 shows he accrued 796 days of time lost due to being absent without leave (AWOL) from 15 January 1983 to 19 March 1985.

5.  On 28 March 1985, a DD Form 458 (Charge Sheet) was prepared preferring two court-martial charges against the applicant for violating Article 89 of the Uniform Code of Military Justice (UCMJ) by being disrespectful in language toward his superior commissioned officer and for three specifications of violating Article 91of the UCMJ by disobeying lawful orders from superior noncommissioned officers (NCOs) on three separate occasions.  

6.  On 5 April 1985, a DD Form 458 was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 15 January 1983 to on or about 20 March 1985.

7.  On 5 April 1985, 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 that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

8.  In his request for discharge, the applicant acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as 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 also indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC discharge.


9.  On 15 April 1985, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed he receive an UOTHC discharge.  He also directed that the applicant be reduced to the lowest enlisted grade.  On 7 May 1985, the applicant was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge on 7 May 1985 shows that he earned the Army Service Ribbon during his active duty tenure.  It also confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, by reason of for the good of the service – in lieu of court-martial.  He completed a total of 2 years, 6 months, and 27 days of creditable active military service and he accrued 796 days of time lost due to AWOL.  

11.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 13 December 2008.  However, his application exceeded the ADRB's 15-year statute of limitations; therefore, he was referred to this Board.

12.  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, 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 HD or a general discharge is authorized, an UOTHC is normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge 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 contentions that his UOTHC discharge should be upgraded to an HD because he was railroaded out of the Army was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of three separate offenses, including his being AWOL for 
796 days, which were punishable with a punitive discharge under the UCMJ.  It further shows that after consulting with legal counsel and being advised of his rights and the effects of an UOTHC discharge, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. 

3.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a trial by court-martial that may have resulted in his receiving a punitive discharge.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance, and accurately reflects his overall undistinguished record of service.  Given the applicant's extensive disciplinary history, his record clearly did not support the issue of an HD or a GD by the separation authority at the time of his discharge, nor does it support an upgrade of his discharge at this late date.  

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 request.

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)                                         AR20090001859



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ABCMR Record of Proceedings (cont)                                         AR20090001859



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