IN THE CASE OF:	  

		BOARD DATE:	  01 July 2009

		DOCKET NUMBER:  AR20090003544 


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

2.  The applicant states that he was under a great deal of stress at the time of his discharge.  He states he was kicked out of the advanced course and was sent to Germany.  At the same time, he was having serious problems with his Korean wife, who was very abusive.  He states he was a sergeant first class and was embarrassed so he could not tell anyone.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 4 February 1969.  He completed training as a radio teletype operation and was honorably discharged on 3 November 1970 for the purpose of immediate reenlistment.

3.  He reenlisted on 4 November 1970 and continued to serve on active duty through a series of reenlistments.  He was promoted to sergeant first class, E-7, on 17 August 1982.

4.  On 20 June 1986, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 3 June 1986 to 9 June 1986.

5.  On 14 November 1986, charges were preferred against the applicant for being AWOL from 1 September 1986 to 4 November 1986.

6.  On 14 November 1986, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He did not submit statements in his own behalf.

7.  On 6 April 1987, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with issuance of a UOTHC Discharge Certificate.

8.  Accordingly, the applicant was discharged from active duty on 6 May 1987 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  He had completed 7 years, 8 months, and 9 days of active military service during the period under review and a total of 18 years and 1 month of active military service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 63 days of lost time due to AWOL.

9.  There is no evidence which shows the applicant applied to the Army Discharge Review Board within its 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 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 honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

11.  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, 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 contends that he was under a great deal of stress at the time of his discharge and he was having serious problems with his Korean wife.  However, these issues are not sufficiently mitigating to warrant relief in this case.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The applicant's record of service shows he received one Article 15 for being AWOL for 7 days and he was charged for being AWOL for 63 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a fully honorable or general under honorable conditions discharge.

4.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable.



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)                                         AR20090003544



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ABCMR Record of Proceedings (cont)                                         AR20090003544



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