IN THE CASE OF:	

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011881 


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.

2.  The applicant states, in effect, he has changed his life and is trying to get into school.  

3.  The applicant provides a DD Form 293 (Application for Review of Discharge 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 26 February 1981 and was trained in and awarded military occupational specialty (MOS) 31K (Combat Signaler).  

3.  The applicant's record shows that he was promoted to specialist four (SP4) on 1 October 1982 and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure he earned the Army Achievement Medal, Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Hand Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 April 1984, for being disrespectful in language toward a superior noncommissioned officer.  The punishment for this offense was a verbal reprimand and 17 days of extra duty and restriction.  

5.  On 19 November 1985, a summary court-martial (SCM) found the applicant guilty of the wrongful appropriation of $237.00 and of being incapacitated for duties.  The resulting sentence was reduction to private first class (PFC) and a forfeiture of $200.00.  

6.  4.  The applicant's Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does include a properly constituted 
DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for separation.  

7.  The applicant’s DD Form 214 confirms he was discharged, in the rank of private/E-1, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by court-martial with a UOTHC discharge on 30 May 1986.  It also shows that at the time of discharge he had completed a total of 5 years, 3 months, and 5 days of creditable active military service.   

8.  There is no indication that 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.  


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  It stipulates that a UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial under the provisions of chapter 10; however, the separation authority may direct that a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  

10.  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.  Paragraph 3-7b 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 contention that his discharge should be upgraded because he has changed his life and is trying to get in school was carefully considered.  However, these factors alone are not sufficiently mitigating to support granting the requested relief. 

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s DD Form 214 confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  

4.  Procedurally, members against whom court-martial charges are preferred and who desire to voluntarily request discharge, are required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by 
court-martial.  In doing so, he would have admitted guilt to offenses under the UCMJ that authorized the imposition of a punitive discharge.  

5.  Absent any evidence of record or independent evidence provided by the applicant to the contrary, it is presumed that the applicant's discharge processing was accomplished in accordance with the applicable regulation; and that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

6.  The record shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in her receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance, and his overall record of service was not sufficiently meritorious to support the separation authority issuing a GD or HD at the time of discharge, nor does it support an upgrade now.  

7.  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)                                         AR20090011881



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ABCMR Record of Proceedings (cont)                                         AR20090011881



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