IN THE CASE OF:	

		BOARD DATE:	1 October 2009
  

		DOCKET NUMBER:  AR20090008957 


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 a general, under honorable conditions discharge (GD). 

2.  The applicant states he would like his UOTHC discharge upgraded to a GD in order to obtain benefits as a Gulf War veteran.  

3.  The applicant provides no 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 records show he enlisted in the Regular Army (RA) and he entered active duty on 24 May 1989.  He was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewman), and the highest rank/grade that he attained while serving on active duty was specialist (SPC)/
E-4. 

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 41 (Awards and Decorations), that he earned the following awards during his active duty tenure:  Army Service Ribbon, Army Achievement Medal, National Defense Service Medal, Army Commendation Medal, Southwest Asia Service Medal with 3 bronze service stars, Army Good Conduct Medal, Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar, and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  Item 21 (Time Lost) shows he accrued 200 days of time lost during four separate periods of being absent without leave (AWOL) between 5 July 1992 and 8 March 1993. 

4.  On 17 July 1992, the applicant's unit commander prepared a Bar to Reenlistment Certificate on the applicant in which he requested the applicant be barred from reenlistment based on his record of indebtedness, failure to make formations, and poor attitude.  The appropriate authority approved the request and the applicant's bar to reenlistment was approved on 27 July 1992.  

5.  On 18 March 1993, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for four specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL during the following periods:  from on or about 15 June 1992 until on or about 17 June 1992, from on or about 5 July 1992 until on or about 14 July 1992, from on or about 21 July 1992 until on or about 1 August 1992, and from on or about 
12 September 1992 until on or about 9 March 1993.

6.  On 18 March 1993, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the effects of an UOTHC discharge, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, he acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge and he elected not to submit a statement in his own behalf.

7.  On 13 April 1993, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge.  On 6 May 1993, the applicant was discharged accordingly.  

8.  The DD Form 214 that was issued to the applicant shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service in lieu of court-martial and that he received an UOTHC discharge.  It also shows he completed a total of 3 years, 4 months, and 25 days of creditable active military service and that he accrued 200 days of time lost due to AWOL.  

9.  There is no evidence showing 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.

10.  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 under other than honorable conditions is normally considered appropriate.

11.  Paragraph 3-7b of the same 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 request that his UOTHC discharge be upgraded to a GD so that he may obtain benefits through the VA was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief. 

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge in lieu 
of trial by court-martial.  All requirements of law and regulation were met and the 
rights of the applicant were fully protected throughout the separation process. 
3.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request.  The separation authority approved his request and appropriately directed that he receive an UOTHC which was consistent with regulatory policy in effect at the time and accurately reflects the applicant's overall record of service.  

4.  The applicant’s record reveals an extensive disciplinary history that included his being barred from reenlistment due to indebtedness, failure to make formations, and poor attitude.  It also shows he accrued 200 days of time lost due to AWOL.  As a result, his overall record of service did not support the issue of a GD by the separation authority at the time of his discharge nor does it support an upgrade of his discharge at this time.  

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.



      ___________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)                                         AR20090008957



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ABCMR Record of Proceedings (cont)                                         AR20090008957



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