IN THE CASE OF:	  

		BOARD DATE: 	        1 July 2009

		DOCKET NUMBER:  AR20090006000 


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 to an honorable discharge (HD).

2.  The applicant states that he was told at the time of his discharge that his discharge would automatically be upgraded in 6 months.

3.  The applicant provides a 13B (Cannon Crewmember) course graduation certificate and a certificate of achievement 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 that he enlisted in the Regular Army and entered active duty on 8 November 1988.
3.  The applicant was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewmember) and he was advanced to the rank of private first class, the highest rank he attained while serving on active duty, on 1 November 1989.

4.  The applicant’s record shows that during his active duty tenure he earned the Army Service Ribbon and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

5.  On 6 June 1990, the applicant’s duty status was changed from present for duty to confined by civil authority.

6.  On 5 August 1990, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 112a of the Uniform Code of Military Justice (UCMJ) by wrongfully possessing cocaine in an amount more or less than 2.4 grams on or about 5 June 1990.

7.  On 30 August 1990, the applicant consulted with legal counsel and was advised of the basis for the pending trial by court-martial, the maximum permissible punishment authorized, the significance of a sentence to a punitive discharge, the possible effects of a UOTHC discharge, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge, the applicant acknowledged that by submitting his discharge request, he was acknowledging that he understood the elements of the offense charged and that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further service.  He further acknowledged that he understood that if his discharge request was approved, he could be discharged UOTHC and that he had been advised of and understood the possible effects of such a discharge.  He also indicated that he understood he would deprived of many or all benefits as a veteran under both Federal and State law and that he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.

9.  The applicant also confirmed in his discharge that he understood there would be no automatic upgrade or review by any Government agency of a less than honorable discharge and that he had to apply to the Army Discharge Review Board (ADRB) or this Board if he wished a review of his discharge.  He further acknowledged that he understood an act of consideration by either board did not imply that his discharge would be upgraded.

10.  On 5 September 1990, the separation authority approved the applicant’s request for discharge and directed the applicant be reduced to the lowest enlisted grade and that he receive a UOTHC discharge.  On 24 September 1990, 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 completed a total of 1 year, 7 months, and 3 days of creditable active military service and that he accrued 106 days of time lost due to civil confinement.

11.  There is no indication that the applicant petitioned the ADRB for an upgrade of his discharge within that board’s 15 year statute of limitations.  

12.  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 normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general under honorable conditions discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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 discharge should be upgraded because he was told it would be automatically upgraded in 6 months was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The Army does not now have, nor has it ever had a policy that provided for automatically upgrading a discharge.  A discharge may only be upgraded by the ADRB if it determines the discharge was improper or inequitable, or by this Board if it determines it is in error or unjust.

3.  The evidence of record confirms that in his request for discharge, the applicant acknowledged his understanding that there were no provisions for an automatic review or upgrade of his discharge and that he would have to apply for an upgrade and/or change to the reason for his discharge to either the ADRB or this Board for consideration.  He further confirmed that he understood that an act of consideration by either board did not imply that his discharge would be upgraded.  As a result, there is insufficient evidence to support his assertion that he was told his discharge would be automatically upgraded in 6 months.

4.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The record shows that 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.

5.  The record also shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance.

6.  The applicant's undistinguished record of service clearly did not support the issuance of a GD or HD by the separation authority at the time of his discharge and does not support an upgrade at this late date.  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)                                         AR20090006000



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ABCMR Record of Proceedings (cont)                                         AR20090006000



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