IN THE CASE OF:	

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090012268 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states, in effect, he was a spirited young man at the time he served.  He is now 50 years old and would like to clear his record before he dies. 
He states he now suffers from medical conditions and is disabled.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty), news articles, drawings, and diplomas in support of this 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 that he enlisted in the Regular Army and entered active duty on 14 March 1977 at the age of 18 years, 7 months, and 12 days.  It further shows he was trained in and awarded military occupational specialty 11B (Infantryman).  His record documents no acts of valor or significant achievement.

3.  The record shows the applicant departed absent without leave (AWOL) from his unit at Fort Stewart, Georgia, on 1 June 1978 and remained away for 20 days until returning to military control on 20 June 1978.

4.  On 29 June 1978, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for being AWOL from 1 June 1978 to 21 June 1978, two specifications of failing to go at the time prescribed to his appointed place of duty, two specifications of disobeying a lawful command from his superior commissioned officer, and two specifications of disobeying a lawful order from his superior noncommissioned officer.

5.  On 30 June 1978, 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 Uniform Code of Military Justice (UCMJ), the possible effects of a UOTHC discharge if his request for discharge were approved, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service.

6.  In his discharge request, the applicant acknowledged his understanding that by requesting discharge, he was admitting that he was guilty of the charge(s) against him or of a lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that under no circumstances did he desire further rehabilitation, because he had no desire to perform further military service.  He also acknowledged his understanding that he could receive a UOTHC discharge, the possible effects of that discharge which could include being ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could encounter substantial prejudice in civilian life as a result of receiving a UOTHC discharge.

7.  On 13 July 1978, the separation authority approved the applicant's request for discharge and directed he receive a UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 20 July 1978, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant on the date of his discharge shows he completed 1 year, 3 months, and 17 days of creditable active military service and accrued 20 days of lost time due to AWOL.

9.  On 20 January 1984, the Army Discharge Review Board, after careful consideration of the applicant's military record and all other evidence, determined his discharge was proper and equitable and it voted not to change either the characterization or reason for his discharge.

10.  Army Regulation 635-200 (Personnel Separations) 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.

11.  Army Regulation 635-200 provides guidance on characterization of service and states an honorable discharge (HD) is a separation with honor and entitles the recipient to benefits provided by law.  It further indicates an HD is appropriate when the quality of service generally meets acceptable standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  It also states a GD is a separation under honorable conditions and is authorized 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 his discharge should be upgraded because he was a spirited young man and is now a 50-year old disabled man was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The record shows he was 18 years, 7 months, and 12 days old when he entered active duty and that he successfully completed basic combat and advanced individual training.  This shows he was mature enough to satisfactorily serve if he wanted to.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.

3.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The record also shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance.

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)                                         AR20090012268



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ABCMR Record of Proceedings (cont)                                         AR20090012268



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