IN THE CASE OF:	  

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090017654 


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 discharge under honorable conditions.  

2.  The applicant states the following:

* He believes his record is in error or unjust
* His discharge was based on 91 days (he likely meant 81 days) of lost time
* He was asked if he wanted to stay in the Army but was not told he would
forfeit his military benefits

3. The applicant provides no additional documents 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 enlisted in the Regular Army on 17 November 1975 for a period of 4 years.  

3.  On 1 July 1976 and 28 February 1977, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses:

* Absent without leave (AWOL) from 26 May through 21 June 1976 
* AWOL from 7 January through 24 January 1977
* Failed to obey a lawful order issued by the first sergeant and a sergeant first class
* Failed to go to his appointed place of duty
* Disrespectful in language towards the first sergeant 

4.  Charges were preferred against the applicant for being AWOL from 17 January 1978 through 22 February 1978.

5.  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), chapter 10.  In doing so, he acknowledged guilt to the offense charged and 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 if a UOTHC discharge was issued.  He did not submit statements in his own behalf.

6.  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 with a UOTHC Discharge Certificate.  

7.  The applicant was discharged from active duty on 21 March 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  He had completed 2 years, 1 month, and 9 days of active military service.  He had 81 days of lost time due to being AWOL.

8.  On 18 October 1985, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.  

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 UOTHC discharge is normally considered appropriate.

10.  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 he believes his record is in error or unjust is noted.  However, the evidence of record does not support his claim.  

2.  The applicant’s contention that he was asked if he wanted to stay in the Army but he was not told he would forfeit his military benefits is noted.  However, his claims are not supported by the evidence of record.  

3.  The applicant’s record shows he was charged with the commission of the offense of being AWOL which is punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his service during the period under review.

4.  The applicant was advised of the effects of a UOTHC discharge.  He was afforded the opportunity to submit statements in his own behalf, but he declined.

5.  The applicant's record shows he was AWOL 81 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a general discharge under honorable conditions or fully honorable discharge.

6.  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 general under honorable conditions.


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)                                         AR20090017654



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ABCMR Record of Proceedings (cont)                                         AR20090017654



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