IN THE CASE OF:	  

		BOARD DATE:	  2 April 2009

		DOCKET NUMBER:  AR20090003698 


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 believes his UOTHC discharge was too harsh in light of his overall service record.

3.  The applicant provides a Department of Veterans Affairs letter, dated 
22 January 2009, 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 records show he enlisted in the Regular Army and entered active duty on 15 April 1980, and that he was trained in and awarded military occupational specialty (MOS) 76W (Petroleum Supply Specialist).  His record shows the highest grade he attained while serving on active duty was specialist four (SP4)/E-4. 

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in Item 41 (Awards and Decorations) that he earned the Army Service Ribbon (ASR) and the Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar during his tenure on active duty.  Item 21 (Time Lost [Section 972, Title 10, U.S. Code]) shows he accrued a total of 287 days of time lost while absent without leave (AWOL) during the periods 21 April 1982 through 6 May 1982 and 16 June 1982 through 14 March 1983.

4.  On 13 May 1982, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order and for being AWOL from on or about 21 April 1982 until on or about 7 May 1982.  His punishment for these offenses was a reduction to private first class (PFC)/E-3 and 30 days confinement (last 20 days suspended until 13 August 1982).

5.  The applicant's Military Personnel Record Jacket contains a DA Form 3836 (Notice of Return of United States Army Member from Unauthorized Absence).  This document shows that the applicant departed AWOL from his unit on 16 June 1982, was dropped from the rolls of the Army (DFR) on the same date, and was apprehended by military authorities on 14 March 1983.

6.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does include a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was separated under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service, and that he received an UOTHC on 11 April 1983.  This document also confirms he completed a total of 2 years, 2 months, and 12 days of creditable active military service and that he accrued 287 days of time lost due to being AWOL.  It further shows that during the period covered by the DD Form 214, he earned the ASR.


7.  There is no evidence showing that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

8.  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.  The regulation does allow the issue of a general, under honorable conditions discharge (GD) or an HD if the separation authority determines it is warranted based on the member's overall record of service; however, an UOTHC discharge is normally considered appropriate for members separated under this provision of the regulation.  

9.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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 contention that his UOTHC discharge was too harsh in light of his overall service record and therefore should be upgraded to an HD was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that 

confirms he had accrued 271 days of lost time due to being AWOL, and identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms he was discharged under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, he was 
charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and was not sufficiently meritorious to support the issuance of an HD or a GD by the separation authority at the time of the applicant’s discharge, nor does it support an upgrade of his discharge at this time.  The applicant’s UOTHC discharge accurately reflects his overall record of service and it would not be appropriate or serve the interest of others who served and faced similar circumstances to support an upgrade of his discharge at this time. 

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)                                         AR20090003698



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ABCMR Record of Proceedings (cont)                                         AR20090003698



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