IN THE CASE OF:	  

		BOARD DATE: 	       30 July 2009

		DOCKET NUMBER:  AR20090006255 


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 a general discharge (GD), under honorable conditions.

2.  The applicant states, in effect, serious personal matters stood in his way of being a great Soldier.  He admits he handled matters wrong and asks for consideration of his request.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 458 (Charge Sheet), and separation 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’s record shows he enlisted in the Regular Army and entered active duty on 16 April 1986.  He completed basic combat training and 
advanced individual training (AIT) at Fort Leonard Wood, Missouri.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 
94B (Food Service Specialist).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows, in item 18 (Appointments & Reductions), that he was promoted to the rank of specialist four (SP4), on 1 March 1988, and that this is the highest rank he held while serving on active duty.  Item 18 also shows he was reduced to the rank of private(PV1)/E-1 on 28 September 1988.

4.  Item 9 (Awards, Decorations and Campaigns) of the applicant’s DA Form 2-1 shows during his active duty tenure he earned the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Hand Grenade Bar.  Item 21 (Time Lost) shows he accrued 114 days of lost time due to being absent without leave (AWOL) from 18 May through 8 September 1988.  His record documents no acts of valor or significant achievement.

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a
DA Form 4187 (Personnel Action) that shows his status was changed from present for duty to AWOL, on 18 May 1988.  A second DA Form 4187 shows he was dropped from the Army’s rolls, on 17 June 1988, and a third shows he surrendered to civilian authorities at Laurinburg, North Carolina and he was returned to military control, on 9 September 1988.  

6.  On 15 September 1988, a DD Form 458 was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 18 May 1988 until 9 September 1988.  

7.  On 15 September 1988, the applicant consulted with legal counsel and 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 for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200.


8.  On 16 September 1988, in his request for discharge, the applicant acknowledged 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.

9.  On the same date, the applicant submitted a personal statement in support of his request for discharge in which he indicated, in effect, he went into an AWOL status after being denied an extension of his leave to resolve the personal, financial, and family problems he had at the time.  The applicant states that he requested an additional 15-day extension of his leave and the first sergeant would only give him an additional 2 days to get back.

10.  On 20 September 1988, the applicant’s commander recommended approval of the applicant’s request with an UOTHC discharge.

11.  On 28 September 1988, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, and directed he receive an UOTHC discharge.  On 28 November 1988, the applicant was discharged accordingly.  

12.  The DD Form 214 issued to the applicant on the date of separation confirms he completed a total of 2 years, 3 months, and 22 days of creditable active military service and that he accrued 114 days of lost time due to being AWOL.

13.  On 6 July 1995, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board (ADRB) concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade of his discharge.  

14.  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.  An UOTHC discharge is normally considered appropriate for members separated under these provisions.  However, the separation authority may direct the issuance of a GD, if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.
15.  Paragraph 3-7a of the same regulation 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. 

16.  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 because he had personal matters that stood in the way of him being a great Soldier was carefully considered.  However, the record shows that after having been granted ordinary leave, the applicant failed to return to his place of duty at the appointed time and he was subsequently reported in an AWOL status which resulted in him accruing a total of 114 days of lost time.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, after consulting with counsel, being advised of his rights, and the effects of an UOTHC discharge, 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. 

3.  The applicant's overall record of service was not sufficiently meritorious to support the issuance of an HD or GD by the separation authority at the time of discharge, and it does not support an upgrade of his discharge at this late date.  The applicant voluntarily requested a discharge in order to avoid a punitive discharge.  Therefore, the UOTHC discharge he received accurately reflects the overall quality of his service.  There is an insufficient evidentiary basis to support an upgrade of his discharge at this late date. 

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 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)                                         AR20090006255



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006255



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1