BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090007001 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  The applicant states that he just got a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and saw he received an UOTHC discharge.  He also states, in effect, that a staff sergeant (pay grade E-6), commanded him to break his medical profile when he was threatened with punishment under Article 15 if he did not clean the dayroom for inspection.  At that time he was on a medical profile and also on crutches.  He did as he was told.  He sat down and broke the conditions of his medical profile.  He then notified the sergeant (pay grade E-5) in his squad.  He was hoodwinked into breaking his profile.  He did not get justice through his chain of command or a compromise and a staff sergeant and specialist got away with giving him an order that he followed instantly, so he went absent without leave (AWOL).  He further states that he had no need of veterans medical benefits.

3.  The applicant provides no additional documentation 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 military records show he enlisted in the United States Army Reserve Delayed Entry Program (DEP) on 26 November 1979.  He was subsequently discharged from the DEP on 7 January 1980 and he enlisted in the Regular Army, in pay grade E-1, for 4 years on 8 January 1980.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B, Light Weapons Infantryman.  He was promoted to pay grade E-3 on 1 December 1980, the highest grade he held.  

3.  On 13 January 1981, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for willfully damaging property by striking his hand through a wall on 27 December 1980.  The punishment imposed was a forfeiture of $130.00 pay for one month ($93.00 of forfeiture suspended for a period of 180 days) and 14 days extra duty and restriction.  He did not appeal the punishment.

4.  The applicant was reported AWOL on 4 June 1981 and dropped from the rolls of his organization on 4 July 1981.  He was apprehended by military authorities and returned to military control on 16 February 1982.

5.  On 19 February 1982, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, Personnel Control Facility, Fort Knox, Kentucky.  The applicant was charged with one specification of being AWOL from 4 June 1981 through 16 February 1982.  

6.  On 23 February 1982, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an under other than honorable discharge; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA).  He waived his rights and elected to submit a statement in his own behalf.

7.  On 2 March 1982, the applicant's company commander recommended approval of the applicant's request and recommended the issuance of a discharge under other than honorable conditions.  The company commander stated that the applicant's conduct had rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.  Based on his previous record, punishment could be expected to have a minimal rehabilitative effect.  

8.  On 2 March 1982, the Commander, Personnel Control Facility, recommended approval of the applicant's request and recommended the issuance of a discharge under other than honorable conditions.  

9.  On 8 March 1982, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a discharge under other than honorable conditions be issued to him and that the applicant be reduced to pay grade E-1.

10.  The applicant was discharged on 22 April 1982, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial, with his service characterized as under other than honorable conditions.  He was credited with 1 year, 7 months, and 3 days net active service and lost time from 4 June 1981 through 15 February 1982.

11.  There is no indication that 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.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for 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 under other than honorable conditions discharge was normally considered appropriate.  

13.  Army Regulation 635-200, paragraph 3-7a, of that regulation provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant's contentions have been noted; however, the applicant was charged with one specification of AWOL from 4 June 1981 through 16 February 1982.  Upon his return to military control he requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  

3.  Contrary to the applicant's contentions, he has provided no evidence or argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or a fully honorable discharge.  

4.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

5.  The applicant states that he does not desire medical benefits administered by the VA.  It is noted that the Board does not grant relief by upgrading a discharge solely for the purpose of an applicant qualifying for medical and/or other benefits administered by the VA and other Federal and State social services organizations.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

8.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090007001





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ABCMR Record of Proceedings (cont)                                         AR20090007001



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