IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090010211 


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, in effect, that he left military service because after one of his grandfathers died, the other became ill and was unable to care for himself.  He indicates he would like his discharge upgraded to a GD because it is difficult to get a job with a UOTHC discharge.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 show he enlisted in the Regular Army (RA) and entered active duty on 16 October 1987.  It shows he never completed training and he was never awarded a military occupational specialty (MOS).  It further shows the highest rank/grade he attained while serving on active duty was private (PV2)/E-2.

3.  The applicant’s record shows that during his active duty tenure he earned the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar. His record documents no acts of valor or significant achievement. 

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in item 21 (Time Lost), that he had two separate periods of being absent without leave (AWOL) between 12 February 1988 through 20 May 1988.

5.  On 8 June 1988, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 85 and 86 of the Uniform Code of Military Justice (UCMJ) for the following:  Article 85, by going AWOL with the intent to remain away permanently on or about 11 March 1988, and remaining AWOL in desertion until apprehended on or about 20 May 1988; and Article 86, by being AWOL from on or about 12 February 1988 through on or about 7 March 1988.

6.  On 9 June 1988, 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 for the good of the service in lieu of trial by court-martial.  In his request for discharge, he indicated that he understood that by submitting the discharge request, he was acknowledging that he was guilty of the charges against him or of a lesser included offense therein contained which also authorized the imposition of a Bad Conduct or Dishonorable discharge.  He also acknowledged that by requesting discharge he was acknowledging 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 statement, the applicant stated he wanted to be discharged from military service because he needed to take care of his "brother," and that the Army wasn't what he expected it to be.

8.  On 14 June 1988, the separation authority approved the applicant’s request for discharge and directed that he receive a UOTHC discharge.  On 
23 September 1988, the applicant was discharged accordingly.  

9.  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 a UOTHC discharge.  It also shows he completed a total of 8 months and 23 days of creditable active military service and that he accrued 74 days of time lost.  

10.  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.

11.  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.

12.  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 that his UOTHC discharge be upgraded to a GD so that he may obtain employment was carefully considered.  However, this factor is not sufficiently mitigating to support granting the applicant's 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 a 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 is void of any acts of valor or significant achievement; however, it does reveal a disciplinary history that includes two separate periods of being AWOL.  As a result, his overall record of service did not support the issue of a GD by the separation authority, nor does it support an upgrade at this time.

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)                                         AR20090010211



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ABCMR Record of Proceedings (cont)                                         AR20090010211



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