IN THE CASE OF:	  

		BOARD DATE:	       15 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007597 


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

2.  The applicant states, in effect, that he is having flash backs from when he was in the Army.  

3.  The applicant provides no documentary evidence 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 he enlisted in the Regular Army (RA) and entered active duty on 28 October 1976.  He was trained in and awarded military 
occupational specialty (MOS) 16P (Air Defense Artillery (ADA) Short Range Missile Crewman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows that he was absent without leave (AWOL) from 1 June 1977 through 8 June 1977.  The applicant's record does not indicate that he received any punishment for this offense.  

4.  On 16 May 1978, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for one specification of being AWOL from 3 January 1978 to 8 May 1978.   

5.  A Report of Mental Status Evaluation, dated 17 May 1978, found the applicant with no significant mental illness, mentally responsible, able to distinguish right from wrong, able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).   

6.  On the same day, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an UOTHC discharge if his request for discharge were approved, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service.  In his discharge request, he acknowledged his understanding that by requesting discharge, he was admitting 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 further stated that under no circumstances did he desire further rehabilitation because he had no desire to perform further military service.  He also acknowledged his understanding that he could receive an UOTHC discharge, and of the possible effects of that discharge, which could include his being ineligible for many or all benefits administered by the Veterans Administration (VA), that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could encounter substantial prejudice in civilian life as a result of receiving an UOTHC discharge.  The applicant's military record indicates that he was placed on excess leave on 19 May 1978 until being discharged from active service.

7.  On 14 July 1978, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel 

Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu 
of trial by court-martial.  The separation authority further directed that the applicant receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 26 July 1978, the applicant was discharged accordingly.  
The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he completed a total of 1 year, 4 months, and 16 days of creditable active military service and that he accrued 133 days of time lost due to being AWOL.  It also shows that he was separated under the provisions of chapter 10, Army Regulation 635-200, by reason of administrative discharge for conduct triable by court-martial.

8.  On 18 June 1981, the Army Discharge Review Board, 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.

9.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, 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.

11.  Army Regulation 635-200, paragraph 3-7b, 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 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 request for upgrade of his UOTHC discharge because he is still having flash backs from being in the Army was carefully considered.  

2.  The applicant's record is void of any medical treatment records or other documents indicating that he suffered from any medically disabling or disqualifying conditions at the time of his discharge.  

3.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  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.

4.  The record also shows the applicant 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.  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)                                         AR20090007597



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ABCMR Record of Proceedings (cont)                                         AR20090007597



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