IN THE CASE OF:	

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090017096 


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 to a fully honorable discharge.

2.  The applicant states, in effect, that just before starting drill instructor training, his commander had him reassigned to Germany because he did not like him.  He states that he did go to Germany; however, things were not working out for him there.  He states that while home on leave, things were pretty bad and he decided not to leave his family and return to Germany.  He also states that he did report back to his prior unit at Fort Sill, Oklahoma, and explained why he needed to stay there.  He states that he was told nothing could be done and to return home where someone would contact him.  He states that he was not contacted until 2 months later at which time he returned to Fort Sill, Oklahoma, and received a UOTHC discharge.

3.  The applicant provides the following documents in support of his application:  DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), death certificate (showing his father died 23 May 1976), DA Form 794A (UOTHC Discharge Certificate), NGB Form 55 (Honorable Discharge Certificate), DA Form 87 (Certificate of Training), a 10 October 1970 and 20 June 1975 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and reassignment orders.


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 that after having prior Army National Guard service, he enlisted in the Regular Army (RA) and entered active duty on 20 June 1975.  He completed basic combat training at Fort Polk, Louisiana, and advanced individual training at Fort Sill, Oklahoma.  Upon completion of training he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist) and he was reassigned to a unit at Fort Sill, Oklahoma, where he remained until his reassignment to Germany on 1 March 1977.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to sergeant/E-5 on 30 November 1976 and that this is the highest rank/grade he attained while serving on active duty.  His record also shows that he earned the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar during his tenure on active duty.

4.  On 11 November 1977, 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) for being absent without leave (AWOL) from on or about 19 March 1977 to 7 October 1977.

5.  On 11 November 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  In his request for discharge, the applicant acknowledged his understanding that by requesting discharge, he was in effect admitting guilt to the charges against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that he understood he could face substantial prejudice in civilian life because of a UOTHC discharge.

7.  On 28 November 1977, the separation authority approved the applicant's voluntary request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed he receive a UOTHC discharge.  He also directed that the applicant be reduced to private/E-1, the lowest enlisted grade.

8.  On 5 December 1977, the applicant was separated from the RA under the provisions of chapter 10, Army Regulation 635-200, by reason of administrative discharge - conduct triable by court-martial.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 11 months, and 17 days of creditable active military service.

9.  The applicant's request includes a DD Form 293 which shows he petitioned the Army Discharge Review Board for an upgrade of his discharge.  However he exceeded that board's 15-year statute of limitations.  Therefore, his case is being considered by this Board.

10.  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.

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

12.  Paragraph 3-7b of the same regulation 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 request for an upgrade of his UOTHC discharge was carefully considered.  However, the evidence of record confirms the applicant was charged with the commission of offenses which were punishable with a punitive discharge under the UCMJ.

2.  The record further shows that after consulting with legal counsel and being advised of his rights and the effects of an UOTHC discharge, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  The applicant voluntarily requested discharge to avoid a trial by court-martial that may have resulted in his receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance, and accurately reflects his overall undistinguished record of service.  His record of service clearly did not support the issue of an honorable or a general under honorable conditions discharge by the separation authority at the time of his discharge, nor does it support an upgrade of his discharge at this late date.

3.  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 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)                                         AR20090017096



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ABCMR Record of Proceedings (cont)                                         AR20090017096



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