IN THE CASE OF:	

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20090001958 


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 he served in the Army and he believes he is entitled to a discharge upgrade.  He indicates that he had not attempted to use his benefits as a result of his military service until recently and it was at this time that he learned about the upgrade process.

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 2 August 1977.  He was trained in, awarded, and served in military occupational specialty (MOS) 36K (Tactical Wire Operation Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments & Reductions) that he was promoted to private first class (PFC) on 1 August 1978, and this was the highest rank he held while serving on active duty.  It also shows that he was reduced to private/E-1 (PV1) on 15 February 1979.  Item 21 (Time Lost Under Section 972, Title 10, United States Code) shows he was absent without leave (AWOL) for 131 days from 
5 September 1978 to 13 January 1979.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant’s military record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the following offenses:  On 12 October 1971, for stealing an eight-track tape valued at $5.50, the property of the Main Post Exchange; and on 29 January 1979, for being disrespectful in language towards his superior noncommissioned officer, for writing profane words on the headcount sheet at the dining facility, and for squeezing a kitten with the intent to cause bodily harm.  

5.  A DD Form 458 (Charge Sheet), dated 17 July 1979, shows the applicant was charged with the above period of AWOL from 5 September 1978 to 13 January 1979.  

6.  On 19 July 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, and of the procedures and rights that were available to him.  
Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200.

7.  In his request for discharge, the applicant acknowledged he understood 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), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he could face substantial prejudice in civilian life because of an UOTHC discharge.

8.  On 15 February 1979, the separation authority approved the applicant’s request for discharge and directed that he receive a UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200.  On 28 February 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed 1 year, 2 months, and 16 days of creditable active military service and that he accrued 131 days of time lost due to being AWOL.

9.  The applicant's record is void of any evidence that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  

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 is normally considered appropriate.

11.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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.

12.  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 military service in the Army entitles him to an upgrade of his UOTHC discharge 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 an offense punishable under the UCMJ with a punitive discharge and 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, he 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 applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal a disciplinary history that shows that in addition to the 131 days of AWOL that led to his discharge, he also accepted NJP on two separate occasions.  The applicant's  undistinguished record of service does not support the issuance of a general or an honorable discharge.

4.  The applicant’s discharge accurately reflects his overall record of service.  There is an insufficient evidentiary basis to support granting the requested relief in this case.

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.

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)                                         AR20090001958



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ABCMR Record of Proceedings (cont)                                         AR20090001958



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