IN THE CASE OF:	

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090011292 


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 an honorable discharge (HD), or at least a general, under honorable conditions discharge (GD).

2.  The applicant states that at the time of his enlistment he was very immature and stupid.  He was told by his recruiter that he could become a military policeman in military occupational specialty (MOS) 95B.  However, after he got out of basic combat training, his recruiter advised him he could reapply for that MOS.  He was further advised to stay in his training for MOS 36K (Tactical Wire Operations Specialist).  He states he has been haunted for more than 40 years by his actions and he wants to get his bad discharge off of his record.  He retired as a policeman in 2006 with 26 years of service.

3.  The applicant provides, in support of his application, a letter from his pastor.

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.  On 1 October 1976, the applicant enlisted in the Regular Army (RA) for
3 years.   He enlisted for a station of choice option for Fort Stewart, GA.

3.  On 15 October 1976, the applicant was assigned to Fort Jackson, SC, for basic combat training.

4.  On 6 December 1976, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 4 to 5 December 1976.  The punishment included a forfeiture of $87.00 pay per month for 1 month and
4 days of restriction and extra duty.

5.  On 12 December 1976, the applicant was enrolled in advanced individual training for MOS 36K.

6.  On 3 February 1977, the applicant accepted NJP for being AWOL from on or about 31 January 1977 to 3 February 1977.  The punishment included a forfeiture of $50.00 pay per month for 1 month (suspended) and 7 days of extra duty.

7.  On 11 February 1977, the applicant was awarded MOS 36K.  He was subsequently assigned for duty at Fort Stewart as a field switchboard operator.

8.  Records show that the applicant was AWOL from 8 to 11 June 1977 and again from 17 June 1977 to 22 August 1977.

9.  On 30 August 1977, charges were preferred against the applicant under the UCMJ for violation of Article 86, AWOL, during the period from on or about
17 June 1977 to on or about 23 August 1977 (67 days).

10.  On 31 August 1977, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  

11.  After consulting with counsel and being advised of his rights and options, the applicant voluntarily submitted a formal request for 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.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

12.  On 26 September 1977, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).  On 12 October 1977, the applicant was discharged accordingly.  He had completed a total of 9 months and 26 days of creditable active military service and he had accrued 77 days of time lost due to AWOL.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

14.  On 25 May 1982, the Army Discharge Review Board (ADRB) considered and denied the applicant's request for an upgrade of his UOTHC discharge.

15.  The letter of support provided by the applicant's pastor states that the applicant is honest, trustworthy, and dependable in all tasks he has performed.  The pastor further contends that the applicant is capable of a more enhanced career in whatever he chooses as his life's goal.

16.  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.

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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.
18.  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 contends that at the time of his enlistment he was very immature and stupid and that his subsequent UOTHC discharge should be upgraded to an HD, or at least a GD.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant has not provided any substantiating evidence to support his contention that his immaturity and stupidity was the proximate cause of his unauthorized absences.  

4.  The applicant's reported good service and capabilities are greatly diminished by the numerous periods of AWOL that resulted in his discharge.  Accordingly, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

5.  Based on the applicant's record of AWOL's, during his initial training and later at his first permanent duty assignment, his service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

6.  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 the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.




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)                                         AR20090011292



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ABCMR Record of Proceedings (cont)                                         AR20090011292



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