IN THE CASE OF:	

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090017106 


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 an honorable discharge (HD). 

2.  The applicant states he was told his discharge would upgraded to an HD over the years. 

3.  The applicant provides no documentary evidence to support 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 (RA) and entered active duty on 23 July 1980.  His DA Form 2-1 (Personnel Qualification Record) shows he departed absent without leave (AWOL) on 3 October 1980, during his initial entry training.  He was dropped from the rolls (DFR) of the organization on 5 November 1980 and remained away for 70 days until returning to military control on 15 December 1980.  His record documents no acts of valor or significant achievement.  

3.  On 30 December 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 3 October to 15 December 1980.  

4.  On 30 December 1980, 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 available to him.  He then voluntarily requested discharge in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

5.  In his request for discharge, the applicant acknowledged he understood that by requesting a discharge he was in effect admitting guilt to the charge against him or to a lesser included offense therein which also authorized a punitive discharge.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated he understood he could face substantial prejudice in civilian life because of a UOTHC discharge.

6.  On 20 January 1981, the separation authority approved the applicant's voluntary request for discharge and directed that he be issued a UOTHC discharge.  He also directed that the applicant be reduced to the lowest enlisted grade.  On 29 January 1981, the applicant was discharged accordingly.  

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he was separated under the provisions of chapter 10, Army Regulation 635-200, by reason of administrative discharge - conduct triable by court-martial.  It also shows he completed a total of 3 months and 26 days of creditable active military service and accrued 70 days of time lost due to being AWOL.  
8.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

9.  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.  

10.  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.

11.  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 contention that his UOTHC discharge should now be upgraded because he was told that it would be upgraded was carefully considered.  However, the evidence does not support this claim.  The Army does not now have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application requesting a change in the discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  Discharge review standards specifically state that no factors will be established that require an automatic change in a discharge. 

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to an offense(s) under the UCMJ that authorized a punitive discharge.  

3.  The applicant’s discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  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 issuance of an HD or GD by the separation authority at the time of his discharge, nor does it support an upgrade of his discharge at this late date.

4.  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)                                         AR20090017106



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ABCMR Record of Proceedings (cont)                                         AR20090017106


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