IN THE CASE OF:	  

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090017856 


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 (GD), under honorable conditions or an honorable discharge (HD).

2.  The applicant states his UOTHC discharge should be upgraded to either a GD or HD based on his overall record of service. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of the 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 on 25 June 1980.  He was trained in and awarded military occupational specialty (MOS) 31L (Wire Systems Installer).

3.  The applicant's record shows that he was promoted to sergeant (SGT)/E-5 on 4 April 1987, and this is the highest rank he attained while serving on active duty. It also shows he earned the following awards during his active duty tenure:

* Army Achievement Medal (3rd Award)
* Army Commendation Medal (2nd Award)
* Army Good Conduct Medal (3rd Award)
* Southwest Asia Service Medal
* Kuwait Liberation Medal
* Army Service Ribbon
* National Defense Service Medal
* Overseas Service Ribbon (2nd Award)
* Expert Marksmanship Qualification Badge with Rifle Bar

4.  The applicant's Official Military Personnel File (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214 which identifies the authority and reason for discharge.

5.  The applicant’s DD Form 214 shows he was discharged on 19 February 1992, in the rank of private/E-1.  It further shows he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by court-martial, with a UOTHC discharge.  He had completed 
11 years, 7 months, and 25 days of creditable active military service.

6.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.  

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides for the separation of members who commit an offense or offenses for which the authorized punishment includes a punitive discharge.  It states a member may, at any time after court-martial charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The member would have been required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted he was guilty of the offenses he was charged with, and acknowledged that he could receive a UOTHC discharge.  A UOTHC discharge was normally considered appropriate for members separated under this chapter.  However, the separation authority may direct a GD if such is merited by the Soldier's overall record.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. 

8.  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.

9.  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 be upgraded to a GD or HD was carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  The available evidence does not include a separation packet containing the facts and circumstances surrounding the applicant’s final discharge processing, and the applicant has failed to identify the facts and circumstances in his application.  However, the record does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed based on this document.   

3.  The applicant’s DD Form 214 shows he 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.  

4.  Procedurally, members against whom court-martial charges are preferred and who desire to voluntarily request discharge are 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 offenses under the UCMJ that authorized the imposition of a punitive discharge.  Absent evidence to the contrary, the applicant's UOTHC discharge is appropriate and the evidence does not support an upgrade to a GD or an HD.

5.  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)                                         AR20090017856



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ABCMR Record of Proceedings (cont)                                         AR20090017856


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