BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090006456 


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, he was told he could apply for a GD after 
6 months if he accepted an UOTHC discharge and now he is making that request.  He also states that he served 3 1/2 years and he went absent without leave (AWOL) with only a couple of months left.  He further states that he was in an accident and was not acting rationally.

3.  The applicant provides a self-authored statement 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 May 1979.  He was trained in and awarded military occupational specialty (MOS) 51C (Structure Specialist).  His record also shows the highest rank that he attained while serving on active duty was specialist four (SP4). 

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, Humanitarian Service Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Hand Grenade Bar during his active duty tenure.  Item 21 (Time Lost) shows he accrued 97 days of time lost.

4.  On 18 August 1981, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL on 10 August 1981.  His punishment for this offense was a reduction to private first class/E-3, a forfeiture of $75.00, and 14 days of extra duty.

5.  On 19 October 1981, the applicant accepted NJP for being drunk on duty.  His punishment for this offense was a reduction to private/E-2, a forfeiture of $100.00, and 14 days of extra duty.

6.  On 9 November 1981, the applicant accepted NJP for being AWOL from 3 to 6 November 1981.  His punishment for this offense was a reduction to 
private/E-1, a forfeiture of $100.00, and 14 days of extra duty.

7.  On 3 February 1982, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Articles 128 and 86 of the UCMJ as follows:  Article 128, for unlawfully pushing another Soldier on the shoulder with his hand, unlawfully striking said Soldier in the nose with his fist and unlawfully kicking him in the face with his feet; and Article 86, for being AWOL from on or about 10 through 13 December 1981 and from 
31 December 1981 through 31 March 1982.

8.  On 12 April 1982, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UOTHC discharge, and of the rights available to him.  Subsequent to receiving this legal counsel the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.


9.  In his request for discharge, the applicant acknowledged that he understood that if his discharge request was approved, 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 further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge and he elected not to submit a statement in his own behalf.

10.  On 27 April 1982, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge.  On 15 June 1982, the applicant was discharged accordingly.  

11.  The DD Form 214 he was issued shows he was administratively separated under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), due to conduct triable by court-martial with an UOTHC discharge.  It further shows at the time he had completed 2 years, 
9 months and 24 days of creditable active service and he had accrued 97 days of time lost due to being AWOL.  

12.  There is no evidence showing 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.

13.  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 GD, under honorable conditions or an honorable discharge (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.  

14.  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.


15.  Paragraph 3-7b of the enlisted separations 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 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 he was informed he could apply for a GD after 6 months was carefully considered.  However, this factor is not significantly mitigating to grant the requested relief.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request.  The separation authority approved his request and appropriately directed that he receive an UOTHC which was consistent with regulatory policy in effect at the time and accurately reflects the applicant's overall record of service.  

4.  The applicant’s record is void of any acts of valor or significant achievement; however, it does reveal an extensive disciplinary history that includes his acceptance of NJP on three separate occasions and his accrual of 97 days of time lost due to being AWOL.  As a result, his overall record of service did not support the issuance of a GD or HD, nor does it support an upgrade at this time.

5.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support granting the requested relief in this case. 


6.  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)                                         AR20090006456



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ABCMR Record of Proceedings (cont)                                         AR20090006456



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