BOARD DATE:	  March 2, 2010

		DOCKET NUMBER:  AR20090014059 


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 an honorable discharge (HD); that his rank be reinstated to specialist four (SP4)/E-4; and that he be provided all back pay and allowances due as a result of his improper discharge.  Additionally, he requests that the separation date on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected and that he receive back pay and allowances based on the correction of this date.

2.  The applicant states, in effect, that he left his unit in an absent without leave (AWOL) status because his wife was having a difficult pregnancy.  Both his wife's life and his unborn son's life were at risk.  He claims he was informed by a Department of Veterans Affairs (VA) Administrator in Alexandria, Louisiana, that if he showed proof of his son's birth at the time he was AWOL, his discharge may be upgraded to an HD.  

3.  The applicant also states that at the time of his discharge he held the rank of private first class (PFC)/E-3 and was promotable to SP4/E-4.  However, he was reduced to private (PV1)/E-1 as a result of his UOTHC discharge.  Therefore, he is also requesting that his rank be reinstated to SP4/E-4, and that he be provided all back pay and allowances due as result of the reinstatement of his rank.  His DD Form 214 shows his separation date as 18 June 1981, and the date reflected at the VA regional office shows his discharge date as 8 June 1981.  Therefore, he is due 10 days of back pay and allowances.


4.  The applicant provides a self-authored statement and son's birth certificate 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 2 August 1979.  It also shows he was trained in and awarded military occupational specialty (MOS) 11B (Infantryman) and that PFC/E-3 was the highest rank/grade he attained while serving on active duty.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he earned the Marksman Marksmanship Qualification Badge with Rifle Bar and Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar during his active duty tenure.  His record documents no acts of valor or significant achievement.

4.  On 20 August 1980, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties in that he negligently failed to secure his weapon and for being AWOL from 8 through 11 August 1980.  His punishment for these offenses was a forfeiture of $100.00 pay for 2 months and 30 days correctional custody (suspended for 90 days).

5.  The applicant's record contains a DA Form 3835 (Notice of Unauthorized Absence from the United States Army), dated 25 February 1981.  This document shows he departed AWOL on 26 January 1981 and was subsequently dropped from the rolls on 24 February 1981.

6.  On 24 February 1981, a DD Form 458 (Charge Sheet) was initiated preferring a court-martial charge against the applicant for violating Article 85 of the UCMJ by being AWOL with the intent to stay away permanently from on or about 
26 January 1981 through an unknown date. 

7.  On 22 May 1981, the applicant was returned to military control.  

8.  A complete separation packet containing all the facts and circumstances surrounding the applicant's discharge processing is not on file.  However, the available record does contain the separation approval authority memorandum approving the applicant's discharge, dated 10 June 1981.  This document confirms the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial was approved and that the separation authority directed that the applicant be reduced to PV1/E-1 in accordance with paragraph 8-11, Army Regulation 600-200 and issued an UOTHC discharge.

9.  The applicant's record contains Headquarters U.S. Army Field Artillery and Fort Sill, Orders Number 168-361, dated 17 June 1981, which show he was discharged on 18 June 1981.   

10.  The applicant’s record also contains a properly-constituted DD Form 214 that was issued to the applicant upon discharge.  It shows the applicant was discharged, in the rank of PV1/E-1, on 18 June 1981, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), by reason of administrative discharge conduct triable by court-martial, and that he was issued a UOTHC discharge.  This document also confirms he completed a total of 1 year, 6 months, and 19 days of creditable active military service and that he accrued 116 days of lost time due to being AWOL.  

11.  On 31 March 1982, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence, voted to deny his request for an upgrade of his discharge and a change in his narrative reason for separation.  

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 general discharge (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 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

15.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time set forth the basic authority for reduction.  Paragraph 8-11, stated that that when a general court-martial authority determines a Soldier is to be discharged from the service with a UOTHC discharge, he will be reduced to the lowest enlisted grade.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should be upgraded to an HD was carefully considered.  Although the applicant's record is void of a complete separation packet containing the specific facts and circumstances surrounding his discharge processing, it does include a properly-constituted DD Form 214 that identifies the authority, reason and characterization of his service.  This document further confirms he accrued 116 days of time lost due to being AWOL. 

2.  The applicant's DD Form 214 confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, administrative discharge conduct triable 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.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by 
court-martial.  Absent evidence to the contrary administrative regularity is presumed.

3.  The applicant's request that his rank be restored to PFC/E-3 or SP4/E-4 was also carefully considered.  However, there is also insufficient evidence to support this claim.  


4.  The evidence of record confirms the applicant held the rank of PFC/E-3 during his discharge processing.  It also confirms that in conjunction with approving the applicant's UOTHC discharge, the separation authority properly directed the applicant be reduced to PV1/E-1 in accordance with the applicable regulation.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  

5.  Further, notwithstanding what VA records reflect, the applicant's military record confirms the separation authority approved his discharge request and directed that he be issued a UOTHC discharge on 10 June 1981, and that he was discharged accordingly on 18 June 1981.  As a result there appears to be no error in the date of discharge documented on his DD Form 214 and no basis to provide him any back pay and allowances based on his discharge date.  

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 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)                                         AR20090014059



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ABCMR Record of Proceedings (cont)                                         AR20090014059


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