IN THE CASE OF:	

		BOARD DATE:	18 August 2009    

		DOCKET NUMBER:  AR20090005930 


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 he wants an upgrade of his discharge.

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 (RA) and entered active duty on 4 September 1980.  He was trained in, 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 private (PV2)/E-2 on 1 April 1981, and that this is the highest rank/
grade he attained while serving on active duty.  His record also shows that he earned the following awards during his tenure on active duty:  Expert Marksmanship Qualification Badge with Grenade Bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Army Service Ribbon, and Overseas Service Ribbon.

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 8 September 1981, for disobeying a lawful order issued by his battalion commander on 19 August 1981.

5.  On an unknown date, court-martial charges were preferred against the applicant for violating Article 128 of the UCMJ by committing an unlawful assault and for violating Article 134 of the UCMJ by possessing hash.  

6.  On 24 February 1982, the applicant consulted with legal counsel and he 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).  

7.  In his request for discharge, the applicant acknowledged his understanding that by requesting discharge, he was in effect admitting guilt to the charges against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that 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 indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC discharge.

8.  On 10 March 1982, the separation authority approved the applicant's voluntary 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 5 April 1982, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he 

was separated under the provisions of chapter 10, Army Regulation 635-200, by reason of administrative discharge - conduct triable by court-martial.  It also shows that he completed a total of 1 year, 7 months, and 2 days of creditable active military service. 

9.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) 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, 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 under other than honorable conditions 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  Paragraph 3-7b of the same regulation 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 request for an upgrade of his UOTHC discharge was carefully considered.  However, the evidence of record confirms the applicant was charged with the commission of offenses which were punishable with a punitive discharge under the UCMJ.  

2.  The record 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.  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 he received was normal and appropriate under the regulatory guidance, and accurately reflects his overall undistinguished record of service.  His record of service clearly did not support the issue of an honorable or a general, under honorable conditions discharge by the separation authority at the time of his discharge, nor does it support an upgrade of his discharge at this late date.  

3.  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)                                         AR20090005930



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ABCMR Record of Proceedings (cont)                                         AR20090005930


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