BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090005617 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that he has an honorable discharge (HD) from the U.S. Navy (USN) and a Good Conduct Medal [Navy].  He also states that he has been a federal civilian employee in good standing for over 9 years.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 March 1993; a DD Form 215 (Correction to DD From 214), dated 22 February 1991; a Department of Veterans Affairs letter, dated 23 May 2006; and a Standard Form (SF) 50 (Notification of Personnel Action) 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 military record shows that after having active and Reserve component service in the USN, he enlisted in the Regular Army (RA) and entered active duty on 4 November 1992.  He was trained in, awarded, and served in military occupational specialty (MOS) 13R (Field Artillery Firefinder Radar Operator).

3.  The applicant’s Official Military Personnel File (OMPF) contains a 
DA Form 4187 (Personnel Action), dated 14 October 1993, which shows, in effect, he was returned to military control on 11 October 1993, after having been  dropped from the rolls (DFR) of the Army as a deserter.

4.  The applicant's record does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s separation processing.  However, it does include a partially legible properly-constituted DD Form 214 which identifies the authority and reason for the applicant's discharge.  It shows he was administratively discharged on 10 February 1994 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of in lieu of trial by court-martial.  It also shows he received a UOTHC discharge.

5.  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 a general, under honorable conditions discharge is authorized, a discharge UOTHC is normally considered appropriate.

6.  Army Regulation 635-200, paragraph 3-7a, 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.


7.  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 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 contention that his UOTHC discharge should be upgraded to an honorable discharge because he honorably served in the USN, earned the Good Conduct Medal, and he has been a federal civilian employee in good standing for over 9 years has been carefully considered.  However, this claim is insufficient to mitigate the requested relief in this case.

2.  The applicant's record is void of a discharge packet containing the specific facts and circumstances concerning the events that led to his discharge.  However, there is a properly-constituted DD Form 214 on file.  This document identifies the reason and characterization of the discharge, and carries with it a presumption of government regularity in the discharge process.  

3.  The applicant’s DD Form 214 confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ).  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of 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.  In the absence of 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. 

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)                                         AR20090005617



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ABCMR Record of Proceedings (cont)                                         AR20090005617



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