BOARD DATE:	  30 July 2009

		DOCKET NUMBER:  AR20090007129 


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.

2.  The applicant states, in effect, he was told his discharge would be upgraded 1 year after his release.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and 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 record shows he enlisted in the Regular Army and entered active duty on 23 March 1983.  He was trained in and awarded military occupational specialty 11B (Infantryman).  His record shows he was promoted to specialist four on 1 February 1986, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private first class/
E-3 for cause on 24 July 1986 and to private/E-1 on 24 October 1986.  His record documents no acts of valor or significant achievement.

3.  The applicant's record documents a disciplinary history that includes his accrual of 19 days of time lost due to two separate periods of his being absent without leave (AWOL) between 11 July 1986 and 15 August 1986.  It also shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions between 9 July 1985 and 24 July 1986.

4.  On 9 July 1985, the applicant accepted NJP for failing to obey the lawful order of a commissioned officer on 26 March 1985, for being disrespectful to a commissioned officer on 26 March 1985, for two specifications of failing to obey lawful orders of superior noncommissioned officers on 2 April 1985, and for four specifications of failing to go to his appointed place of duty at the time prescribed between 8 April 1985 and 5 June 1985.  His punishment for these offenses was a reduction to private/E-2, forfeiture of $162.00, and 14 days of restriction.

5.  On 24 July 1986, the applicant accepted NJP for being AWOL from 11 July 1986 to 15 July 1986.  His punishment for this offense was a reduction to private first class/E-3, a forfeiture of $190.00 (suspended), and 14 days of extra duty.  On 3 September 1986, the suspended $190.00 forfeiture imposed by the 24 July 1986 NJP action was vacated based on the applicant being AWOL from 1 August 1986 through 16 August 1986.

6.  On 28 August 1986, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Article 86 and Article 91 of the UCMJ by being AWOL and by wrongfully possessing cocaine, respectively.  On 19 September 1986, a DD Form 458 was prepared preferring additional charges against the applicant for violating Article 112a and Article 123a of the UCMJ by wrongfully possessing marijuana and wrongfully and unlawfully uttering bad checks.

7.  On 6 October 1986, 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.
8.  Subsequent to receiving 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).  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 request for 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 24 October 1986, 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 20 November 1986, 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 3 years, 7 months, and 9 days of creditable active military service and that he accrued 19 days of time lost due to AWOL.

11.  On 5 October 1994, the ADRB, after careful consideration of the applicant’s records and all other available evidence, determined the applicant’s discharge was proper and equitable.  As a result, it voted not to change the character of or reason for his discharge.

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.

13.  Army Regulation 635-200 stipulates that a UOTHC discharge is normally appropriate for a Soldier who is discharged under the provisions of chapter 10; however, the separation authority may direct the issuance of 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.

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.  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 discharge should be upgraded because he was told it would be automatically upgraded 1 year after his release 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.  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 1 year.  The evidence further confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and, after consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.
4.  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.  He clearly 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.

5.  The applicant's undistinguished record of service as evidenced by his disciplinary history clearly did not support the issuance of a GD or HD by the separation authority at the time of his discharge and it does not support an upgrade at this late date.

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)                                         AR20090007129



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ABCMR Record of Proceedings (cont)                                         AR20090007129



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