BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090008795 


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 an honorable discharge (HD). 

2.  The applicant states, in effect, he was having bad eye problems and a long time has passed since his discharge.   

3.  The applicant refers to his military medical record; however, he 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 and entered active duty on 21 September 1976.  He successfully completed basic combat training at Fort Knox, Kentucky, and advanced individual training (AIT) at Fort Benning, Georgia.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  

3.  The applicant's record shows he was advanced to the rank of private/E-2 on 21 March 1977, and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure he earned the Expert Marksmanship Qualification Badge with Hand Grenade Bar and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.  

4.  On 12 August 1977, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 12 July through 10 August 1977.  His punishment for this offense was a reduction to private/E-1 (suspended), a forfeiture of $187.00 pay for 2 months, 14 days of extra duty, and 45 days of restriction.

5.  The applicant's record contains a Standard Form 88 (Report of Medical Examination), dated 12 April 1978, which documents his separation physical examination.  This document notes that the applicant did not have glasses with him and could not see anything.  It gives no indication that the applicant had ever been issued a profile for impaired vision or that he suffered from any disabling physical condition that would have supported his separation processing through medical channels.  It shows he was assigned a 111111 profile and was cleared for retention/separation by the examining physician.  

6.  On 12 April 1978, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 17 August 1977 to 30 March 1978. 

7.  On 13 April 1978, 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.  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).  



8.  In his request for discharge, the applicant acknowledged that by submitting his discharge request 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 which also authorized the imposition of a UOTHC discharge.  He further indicated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further service.  He further acknowledged that he understood if his request was approved, he could be issued a UOTHC and that he had been advised of and understood the possible effects of such a discharge. He also acknowledged that he understood he would be 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.  On 26 May 1978, the separation authority approved the applicant’s request for discharge and directed the applicant receive a UOTHC discharge.  On 
13 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, 1 month, and 13 days of total active service and he had accrued 263 days of lost time due to being AWOL.

10.  There is no evidence that the applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15 year statute of limitations.  

11.  The record does show he applied to this Board requesting a disability retirement in January 1998.  On 7 July 1999 and after careful consideration of the applicant’s record and all other available evidence it was determined the applicant failed to provide sufficient evidence to conclude it would be in the interest of justice to grant the relief requested or in the interest of justice to excuse his failure to timely file his application within the time prescribed by law. 

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, 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 HD or a general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate.

13.  Paragraph 3-7a, Army Regulation 635-200 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. 

14.  Paragraph 3-7b, Army Regulation 635-200 also 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 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 his discharge should be upgraded because he suffered from a severe eye condition while he served was carefully considered.  However, his medical records fail to show his eye condition was disabling or contributed to the misconduct that led to his discharge.  

2.  The evidence of record 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.  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 UOTHC discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  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.  Further, his 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.

4.  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)                                         AR20090008795



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ABCMR Record of Proceedings (cont)                                         AR20090008795



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