BOARD DATE:	  March 9, 2010

		DOCKET NUMBER:  AR20090016149 


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 discharge be upgraded.

2.  The applicant states, in effect, that he was told by his Judge Advocate General officer that it was best for him to sign the papers and return to the United States.  However, he would not have taken his advice, if he had understood the impact of that decision.  He also states he was told that after 6 months his discharge would be upgraded to that of honorable.

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 military records show he enlisted in the Regular Army, in pay grade E-4 on 20 June 1979, with prior enlisted service in the U.S. Army Reserve. He completed training and was awarded military occupational specialty 91Q (Pharmacy Specialist).  He was promoted to pay grade E-5 on 14 August 1980.  He served in Korea from 1 January 1983 to 19 June 1984.

3.  On 11 July 1983, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully having in his possession some amount of methamphetamine.  His punishment was a forfeiture of $229.00 pay.  He did not appeal the punishment.

4.  On 17 October 1983, the applicant accepted punishment under Article 15, UCMJ, for failing to go to his appointed place of duty on 11 October 1983.  His punishment was 10 days of extra duty.

5.  The applicant was reported absent without leave (AWOL) from 6 December to 8 December 1983.  He was again reported AWOL on 13, 22, 26, and from 
29 February 1984 to 27 March 1984.

6.  All of the facts and circumstances surrounding the applicant's administrative separation are not present in the available records; however, the records do contain a duly-constituted DD Form 214 signed by the applicant.  This DD Form 214 shows the applicant was discharged on 21 June 1984, in pay grade E-1, under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Separations), for the good of the service in lieu of court-martial with an under other than honorable conditions (UOTHC) discharge.  He was credited with completing 4 years, 10 months, and 28 days of net active service and he had 
34 days of lost time due to being AWOL.  

7.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a UOTHC discharge, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service.  However, an UOTHC discharge was considered appropriate at the time.  

9.  Army Regulation 635-200, paragraph 3-7a, also specified that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, further specified that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded, that he did not understand the impact of his decision to request a discharge, and that he was told his discharge would be upgraded in 6 months.

2.  The available records show the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  Some of the facts and circumstances surrounding the discharge process are missing.  However, his record shows the commission of offenses for which he received NJP (twice) and several AWOL offenses, which were punishable under the UCMJ with a punitive discharge.  He would have then been required to consult with defense counsel and would have been required to sign a statement indicating he had been informed that he could receive a UOTHC and the ramifications of receiving such a discharge.  He would have voluntarily requested discharge to avoid trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ.  Regularity is presumed in the discharge process.  The applicant has provided no information that would indicate the contrary.   

3.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would have jeopardized his rights.  The applicant has provided no evidence to the contrary. Therefore, it is concluded that the applicant’s misconduct diminished the quality of his overall service below that meriting a general or a fully honorable discharge.  
4.  The Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge based on the passage of time.  Each case is considered based on its own merits and relief may be granted if it is determined that an error or an injustice exists.  The applicant did not submit any evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090016149



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016149



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1