IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014359 


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, that he had two honorable discharges and wishes these to be considered so he can receive medical benefits.  

3.  The applicant provides no documentary evidence 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 initially enlisted in the Regular Army (RA) and entered active duty on 5 August 1980, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  
3.  On 15 March 1984, the applicant was discharged for the purpose of immediate reenlistment and on 16 March 1984, he reenlisted in the RA for 
4 years, in the rank of sergeant (SGT), and continued serving on active duty.  

4.  On 13 December 1987, the applicant was discharged for the purpose of immediate reenlistment and on 14 December 1987, he reenlisted in the RA for 
3 years, in the rank of SGT, and continued serving on active duty.  

5.  The applicant's record shows that he was promoted to SGT on 2 January 1984, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to specialist (SPC) for cause on 17 February 1989 and to private/E-1 (PV1) on 1 March 1991.  

6.  The applicant's records shows that during his active duty tenure, he earned the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars, Army Good Conduct Medal (2nd Award), Army Achievement Medal 1st Oak Leaf Cluster (2nd Award), Overseas Service Ribbon, Noncommissioned Professional Development Ribbon, and Air Assault Badge.  

7.  On 3 February 1989, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty at the time prescribed on two separate occasions on 11 January 1989.  His punishment for these offenses was a reduction to SPC and 14 days of restriction and extra duty.  

8.  On 12 July 1990, while serving in Korea, the applicant departed absent without leave (AWOL) from his organization.  He remained away for 210 days until returning to military control at Fort Knox, Kentucky, on 7 February 1991.  

9.  On 15 February 1991, a DD Form 459 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 12 July 1990 through on or about 
7 February 1991.  

10.  On 15 February 1991, the applicant consulted with legal counsel and was advised of the basis of the contemplated trial by court-martial and of the maximum permissible punishment authorized under the UCMJ; of the possible effects of a discharge UOTHC if a request for discharge were approved; and of the procedures and rights available to him.  Subsequent to receiving this counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.   

11.  In his discharge request, the applicant acknowledged he understood the elements of the offense charged and was guilty of the charge or of a lesser included offense therein contained that also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation because he had no desire to perform further military service.  He also indicated that he understood that if his request for discharge were accepted, he could be discharged UOTHC and that as a result of receiving such a discharge, he could be deprived of many or all Army benefits, that he could be ineligible for benefits administered by the VA (Department of Veterans Affairs), and that he could be deprived his rights and benefits as a veteran under both Federal and State law.  

12.  On 1 March 1991, the separation authority approved the applicant's discharge request and directed he receive a UOTHC discharge and that he be reduced to PV1.  On 8 April 1991, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time confirms he completed a total of 10 years, 1 month, and 19 days of active military service and that he accrued 210 days of time lost due to AWOL.  

13.  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, 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.  A UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general, under honorable conditions discharge (GD), if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

14.  Paragraph 3-7a of the same regulation provides that an honorable discharge (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 general discharge (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 based his receipt of two prior honorable discharges so that he can receive benefits was carefully considered.  However, eligibility for benefits in and of itself is not a basis for an upgrade of a discharge.  

2.  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.

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

4.  The applicant's overall record of service, which included his acceptance of NJP and accrual of 210 of time lost due to AWOL, did not support the issue of a GD or HD by the separation authority at the time of his discharge, and it does not support an upgrade of his discharge at this late date.  

5.  The applicant is advised that eligibility for veterans' benefits administered by the VA is determined by that agency under their own governing policy, regulations, and law, and is not within the purview of the Board.  Therefore, questions regarding eligibility based on honorable completion of your first full term of service should be addressed to that agency.  

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)                                         AR20090014359



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090014359



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1