IN THE CASE OF:	  

		BOARD DATE:	       13 AUGUST 2009

		DOCKET NUMBER:  AR20090006728 


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

2.  The applicant states, in effect, that he wants to clear up a mistake he made at an early age.  He claims his wife had problems with her parents and after his son was born he went home to care for his family.  He further indicates he had no one to receive guidance from at the time. 

3.  The applicant provides character references, record documents, a 
DD Form 214 (Certificate of Release or Discharge from Active Duty), and a discharge certificate 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 after having prior active duty service, he enlisted in the Regular Army and entered active duty 30 January 1979.  He was trained in, awarded, and served in military occupational specialty 31V (Tactical Communications System Operator Mechanic).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows that he was promoted to specialist four on 2 February 1978, and that this was the highest rank he held while serving active duty.  It also shows that he was twice reduced to private first class (PFC), on 7 March and 25 December 1980, and to private/E-1 on 22 May 1981.

4.  Item 9 (Awards and Decorations) of the applicant's DA Form 2-1 shows he earned the Expert Marksmanship Qualification Badge during his tenure on active duty.  Item 21 (Time Lost) shows he was reported absent without leave (AWOL) on 30 July 1979, for 1 day.  It also shows he was reported AWOL for 293 days from 2 June 1980 to 22 March 1981.

5.  The applicant’s record reveals a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 14 August 1979, for being AWOL from 30 to 31 July 1979, and for failing to go to his appointed place of duty at the time prescribed.  His punishment for these offenses was a reduction to PFC (suspended), forfeiture of $100.00 (suspended), and 12 days of restriction and extra duty.  

6.  A DA Form 2-2 (Insert Sheet to DA Form 2-1/Record of Court Martial) shows that on 6 March 1980, a summary court-martial (SCM) found the applicant guilty of disobeying a lawful order (Charge I) and assault (Charge II).  The resultant sentence was a reduction to PFC (suspended), forfeiture of $197.00, and 
15 days of restriction and extra duty.  The DA Form 2-2 also shows that the reduction suspension was vacated and ordered to be executed in SCM Order Number 6, dated 6 June 1980.

7.  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 properly-constituted DD Form 214 which identifies the authority and reason for the applicant's discharge.  The DD Form 214 shows he was administratively discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of conduct triable by court martial and that he received an UOTHC discharge.

8.  The applicant provides three character references from individuals who state that he is a good and decent man, dedicated and committed, and an excellent youth leader.

9.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 5 May 2009.  However, the ADRB's 15-year statute of limitations for a review of his request had passed. 

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, 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 normally is appropriate for a Soldier who is discharged in lieu of 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 honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  

11.  Army Regulation 635-200, paragraph 3-7a of the enlisted separations regulation 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.  Army Regulation 635-200, paragraph 3-7b of the enlisted separations regulation 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 wants to clear up the mistakes that he made at an early age was carefully considered.  However, although his post-service conduct as attested to in the character references provided is noteworthy, this factor alone is not sufficiently mitigating to support granting the requested relief.

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, by reason of conduct triable by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the 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.  Notwithstanding his noteworthy post-service conduct, as attested to in the character references provided, his record was not so clearly meritorious that it would have supported the issue of an HD or GD by the separation authority at the time of his discharge, nor is it sufficiently meritorious to support an upgrade now.  Therefore, absent any evidence of record indicating an error or injustice in the discharge process, there is an insufficient evidentiary basis to warrant an upgrade of his discharge at this late date. 

5.  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.



      _______ _   __XXX_____   ___
               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)                                         AR20090006728



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ABCMR Record of Proceedings (cont)                                         AR20090006728



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