IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090010263 


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 a general discharge (GD), under honorable conditions or to a fully honorable discharge (HD).

2.  The applicant states, in effect, that it has been 16 years since his discharge and he was told his UOTHC discharge would be upgraded after 6 months.  He indicates he had no leave and departed absent without leave (AWOL) to see his father who was sick.  He also states that he was told that if he requested a discharge for the good of the service it would be changed to an HD.

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 enlisted in the Regular Army and entered active duty on 23 June 1987.  He completed basic combat training and advanced individual training (AIT) at Fort Jackson, South Carolina.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 94B (Food Service Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to specialist four (SP4)/E-4 on 1 August 1989, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced to private (PV1)/E-1 on 19 February 1993.

4.  Item 21 (Time Lost Under Section 972, Title 10, USC) of the applicant’s DA Form 2-1 shows he accrued 52 days of time lost due to being AWOL from 4 December 1992 to 24 January 1993.

5.  On 2 February 1993, 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 during the above period.

6.  On 2 February 1993, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  In his request for discharge, the applicant acknowledged that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser offense included therein, which also authorized the imposition of a punitive discharge.  He also acknowledged his understanding that 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 also indicated that he understood he could face substantial prejudice in civilian life because of a UOTHC discharge.  

8.  In his discharge request, the applicant also acknowledged his understanding that there was no automatic upgrading or automatic review of his discharge by any Government agency or the ABCMR, and that if he desired a review of his discharge, he had to apply to either the Army Discharge Review Board (ADRB) or ABCMR, and that the act of consideration by either board did not imply that his discharge would be upgraded. 
9.  On 19 February 1993, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, and directed that he receive a UOTHC discharge.  He also directed that the applicant be reduced to the lowest enlisted grade.  On 11 March 1993, the applicant was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge on 11 March 1993 shows that he earned the following awards during his tenure on active duty:  Army Achievement Medal with 2nd Oak Leaf Cluster, Army Good Conduct Medal, National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar.  It also confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service – in lieu of court-martial.  At the time of his discharge, he had completed a total of 
5 years, 6 months, and 28 days of creditable active military service and had accrued 52 days of time lost due to being AWOL.

11.  The applicant's record is void of any indication that he petitioned the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.  

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 GD is authorized, a UOTHC is normally considered appropriate.

13.  Paragraph 3-7a of the same regulation 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 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 contentions that he was told his UOTHC discharge would be upgraded within 6 months has been carefully considered.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  A member must apply for an upgrade to either the ADRB or ABCMR and each case is decided on its own merits when an applicant requests a change in the discharge.  Changes may be warranted if either board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  In his request for discharge, the applicant acknowledged that there would be no automatic review or upgrade of his discharge and that he was fully advised of the procedures for applying to the ADRB or ABCMR to request a discharge upgrade.  As a result, there is insufficient evidence to support his claim.  

3.  The evidence of record confirms the applicant was charged with the commission of an offense that was punishable with a punitive discharge under the UCMJ.  It further shows that after consulting with legal counsel and being advised of his rights and the effects of a UOTHC discharge, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. 

4.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a trial by court-martial that may have resulted in his receiving a punitive discharge.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance, and accurately reflects his overall record of service.  His record of service was not sufficiently meritorious to support the issuance of an HD or GD by the separation authority at the time of his discharge, nor does it support an upgrade at this late date.  

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 request.


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)                                         AR20090010263



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ABCMR Record of Proceedings (cont)                                         AR20090010263


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