IN THE CASE OF:	  

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090016805 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states, in effect, he is in bad health and he can't receive services due to his discharge.  He acknowledges there are bad things on his record.  He is just trying to live his life and get services.  He states he is requesting the upgrade for his own personal satisfaction.

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 enlisted in the Regular Army and entered active duty 12 November 1986.  He completed basic combat training at Fort Leonard Wood, Missouri, and advanced individual training at Fort Lee, Virginia.  Upon completion of training, he was awarded military occupational specialty 76C (Equipment and Record and Parts Specialist) and was assigned to Germany.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he departed absent without leave (AWOL) on 6 May 1987 prior to reporting for movement to his overseas assignment to Germany.  He was dropped from the rolls of the organization on 5 June 1987 and he remained away until returning to military control on 3 August 1987 after accruing 90 days of time lost.

4.  A DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) based on his departing AWOL on 6 May 1987.

5.  The applicant's record does not include a separation packet containing the specific facts and circumstances surrounding the applicant's separation processing.  However, it does include a DD Form 214 (Certificate of Release or Discharge from Active Duty).  This separation document shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service in lieu of trial by court-martial and that he received a UOTHC discharge.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides guidance on separating members for the good of the service in lieu of trial by court-martial.  It allows a member who commits an offense that authorizes a punitive discharge to submit a request for discharge for the good of the service anytime after charges have been preferred. 
A UOTHC discharge is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a GD if it is merited by the Soldier's overall record during the current enlistment.  

7.  Army Regulation 635-200 states a GD is a separation under honorable conditions and is authorized 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.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should be upgraded because he is in bad health and in need of benefits as well as for his own personal satisfaction was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The applicant's misconduct clearly supported the UOTHC discharge he received.  His overall record of service did not support the issuance of an HD or GD at the time of his discharge and does not support an upgrade of his discharge now.

3.  The applicant's record is void of a discharge packet containing the specific facts and circumstances concerning the events that led to his discharge.  However, there is a properly-constituted DD Form 214 on file that identifies the reason and characterization for the discharge.  This document carries with it a presumption of government regularity in the discharge process.

4.  The DD Form 214 confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial 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.

5.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  In the absence of evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20090016805



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ABCMR Record of Proceedings (cont)                                         AR20090016805



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