IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011317 


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 served 18 months in the demilitarized zone (DMZ) in South Korea as a forward observer prior to any other actions occurring and he believes this service should be recognized.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) 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 on 6 June 1979.  It also shows he was trained in and awarded military occupational specialty (MOS) 13F (Fire Support Specialist) and that private first class (PFC)/E-3 was the highest rank/grade he attained while serving on active duty.

3.  The applicant's record shows that during his active duty tenure he earned the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Hand Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.  It also shows he served in Korea from 1 October 1979 through 24 September 1980 and that during this tour he was assigned to Headquarters and Headquarters Battery, 1st Battalion, 15th Field Artillery, 2nd Infantry Division, performing duties in MOS 13F as a radio/telephone operator.  His record documents no acts of valor or significant achievement.

4.  On 8 August 1980 while serving in Korea, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana, selling duty-free goods to Korean nationals, and wrongfully purchasing two cases of beer in 1 day.  The resultant punishment was a reduction to private/E-2, forfeiture of $50.00, and 14 days of extra duty and restriction.

5.  The applicant's official military personnel file contains a DA Form 3835 (Notice of Unauthorized Absence from United States Army) which shows the applicant went absent without leave (AWOL) on 20 July 1981 and that he was subsequently dropped from the unit rolls on 18 August 1981.

6.  On 5 May 1982, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL from on or about 20 July 1981 until on or about 26 April 1982.

7.  On 7 May 1982, the applicant consulted with legal counsel and 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.


8.  In his request for discharge, the applicant also acknowledged that if his discharge request were 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a UOTHC discharge.  The applicant elected not to submit a statement in his own behalf.

9.  On 19 May 1982, the separation authority approved the applicant's request for discharge and directed that he receive an UOTHC discharge.  On 2 June 1982, the applicant was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued at the time shows he was discharged in the rank of private/E-1 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of conduct triable by court-martial and that he received a UOTHC discharge.  It also shows he completed a total of 2 years, 2 months, and 18 days of creditable active military service and that he accrued 283 days of time lost due to AWOL.

11.  There is no evidence showing the applicant applied to the Army Discharge Review Board 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 honorable discharge (HD) or GD is authorized if warranted based on the overall record of service, a UOTHC discharge is normally considered appropriate for members separated under these provisions.

13.  Paragraph 3-7a of Army Regulation 635-200 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Paragraph 3-7b of Army Regulation 635-200 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 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 his overseas service in the DMZ in Korea 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 a UOTHC discharge 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 a disciplinary history that included his wrongful possession of marijuana and his accrual of 283 days of time lost due to 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 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)                                         AR20090011317



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011317



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1