IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090016538 


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 upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states that he had two honorable discharges before the UOTHC discharge.  He states he would like to be buried in an Army cemetery.

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 June 1982.

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 was inducted into the Army of the United States on 27 May 1970 and he was honorably released from active duty on 16 January 1972.  On the following day, he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.

3.  The applicant enlisted in the Regular Army (RA) on 25 October 1972 and was honorably discharged on 18 September 1975 for immediate reenlistment.

4.  On 19 September 1975, the applicant reenlisted in the RA for a period of six years.  He was promoted to staff sergeant on 29 July 1976.

5.  On 13 December 1979, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

6.  On 21 April 1982, charges were preferred against the applicant for being absent without leave (AWOL) from 23 April 1981 to 19 April 1982.

7.  On 23 April 1982, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if a UOTHC discharge was issued.  He did not submit statements in his own behalf.

8.  On 6 May 1982, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed issuance of an UOTHC discharge.

9.  Accordingly, the applicant was discharged from active duty on 9 June 1982 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an UOTHC discharge.  He completed 5 years, 8 months, and
25 days of active military service during the period under review and 4 years,
6 months, and 14 days of prior active military service.  He had 361 days of lost time due to AWOL.

10.  There is no evidence which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.


11.  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 honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statement that his UOTHC discharge should be upgraded because he previously had two honorable discharges was considered.  However, records show that the applicant received an Article 15 and he was charged with being AWOL for 361 days during his last period of service.

2.  The applicant’s statement that his UOTHC discharge should be upgraded because he would like to be buried in an Army cemetery was also considered.  However, this issue is not sufficiently mitigating to warrant relief in this case.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

4.  Based on the applicant’s record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army 
personnel.  His misconduct and lost time also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable discharge or a general discharge. 

5.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable.

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)                                         AR20090016538



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016538



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1