IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090010192 


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

2.  The applicant states, in effect, he received high commendations while serving in the Republic of Vietnam (RVN), and while on leave he experienced family hardships.  He also claims his unit in Berlin did not want him to return.

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 he initially enlisted in the United States Marine Corps (USMC) and he served for 3 years, 6 months, and 1 day until being honorably separated on 31 January 1972.  On 16 June 1975, he enlisted in the Regular Army (RA) and entered active duty.  He was trained in and awarded military occupational specialty (MOS) 19E (Armor Crewman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows that he attained the rank/grade of sergeant (SGT)/E-5 on 13 June 1977 and that this is the highest rank he attained while serving on active duty.  Item 9 (Awards, Decorations and Campaigns) shows he earned the following awards:  National Defense Service Medal, Republic of Vietnam Campaign Medal, Vietnam Service Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Army of Occupation Medal, Army Commendation Medal, and Combat Action Ribbon.  Item 21 (Time Lost) shows he accrued 59 days of time lost due to being absent without leave (AWOL) during the period 16 June through 13 August 1978.

4.  On 11 September 1978, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about
16 June 1978 until on or about 15 August 1978.

5.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the effects of a UOTHC discharge, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested 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.

6.  In his request for discharge, the applicant 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 Veterans Administration (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 a UOTHC discharge and he elected to submit a statement in his own behalf.  

7.  In his personal statement, the applicant stated he would not have gone AWOL had he not been sent overseas, causing him to lose his family.  He further stated that if he were returned to duty he would not do a good job based on the fact that although he was a SGT in the Army, he was still being treated as a lesser grade.

8.  On 26 September 1978, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC discharge.  On 
10 October 1978, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 and that he received a UOTHC discharge.  It also shows he completed 3 years, 1 month, and 27 days of net active service this period and that he accrued 59 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.  Army Regulation 635-200, paragraph 3-7a, 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.

12.  Paragraph 3-7b, of the same regulation, 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 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 UOTHC discharge should be upgraded based on having received commendations during his RVN service and based on the family hardships he experienced was carefully considered.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense 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 confirms the applicant was processed for separation in lieu of trial by court-martial at his own request in order to avoid a trial by court-
martial that could have resulted in him receiving a punitive discharge.  The separation authority approved his request and appropriately directed that he receive a UOTHC, which was consistent with regulatory policy.

4.  The applicant’s record is void of any acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his accrual of 59 days of time lost due to being AWOL.  As a result, his overall record of service did not support the issuance of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade 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)                                         AR20090010192



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ABCMR Record of Proceedings (cont)                                         AR20090010192


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