IN THE CASE OF:	

		BOARD DATE:	  04 March 2010

		DOCKET NUMBER:  AR20090014454 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded. 

2.  The applicant states he had no court-martial actions taken against him within the 6 months prior to his release from active duty.  Additionally, he states that he needs the upgrade to receive medical care from the Department of Veterans Affairs (VA).

3.  The applicant provides a letter of support from his minister and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the Regular Army on 18 April 1977, completed training, and was awarded the military occupational specialty of 36R (Tactical Wire Operations Specialist).  

3.  On 6 July 1977, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice for possession of marijuana.  This is the only disciplinary action for which there is supporting documentation.

4.  On 1 September 1978, he was advanced to pay grade E-4, and he was promoted to pay grade E-5 in February 1983.  

5.  The available evidence does not show what the specific charges were.  However, on 21 June 1984, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  He acknowledged that he was guilty of the charges made against him or of lesser included charges, and that if his request was accepted he could receive a UOTHC Discharge Certificate.  He acknowledged he understood that such a discharge would deprive him of many or all benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

6.  On 22 June 1984, the discharge authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200 and directed that the applicant receive a UOTHC discharge.

7.  The applicant was discharged on 12 July 1984 with a UOTHC discharge in accordance with chapter 10, Army Regulation 635-200.

8.  The applicant's minister describes the applicant as a man who is trustworthy, dedicated, and loyal to his church and community. 

9.  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 limitation.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  Chapter 10 states 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 UOTHC discharge is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge 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.

13.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he needs his UOTHC discharge upgraded so that he may be eligible for medical care through the VA.

2.  The specific charges relating to the applicant's discharge were not available.  However, the evidence shows the applicant voluntarily requested a discharge to avoid a trial by court-martial.  He was advised of his rights, and he acknowledged he understood the consequences of being issued a UOTHC discharge.  

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate based on the facts that are available.

4.  The ABCMR does not change records solely for the purpose of establishing eligibility for other programs or benefits.  

5.  Further, the applicant's character reference letter is not sufficient to establish a basis for an upgrade of his discharge.  

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)                                         AR20090014454



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ABCMR Record of Proceedings (cont)                                         AR20090014454



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