IN THE CASE OF:	

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090018203 


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 upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge (GD).

2.  The applicant states he went absent without leave (AWOL) for a variety of reasons.  These included grief over his grandfather's suicide and his own medical issues.  He contends the stress of everything caused him to make the decision to leave and this decision is ruining his opportunities.

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 on 16 July 1985.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The record shows the applicant was advanced to private first class (PFC)/E-3 on 1 March 1986, and this is the highest rank he attained while serving on active duty.  It further shows during his active duty tenure, the applicant earned the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His record documents no acts of valor or significant achievement.

4.  On 8 April 1986, the applicant departed AWOL.  He remained away for 150 days until returning to military control on 4 September 1986.

5.  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 on or about 8 April 1986 to on or about 4 September 1986.

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  A DA Form 31 (Request and Authority for Leave) shows the applicant was placed on excess leave status effective 26 September 1986.

7.  The applicant's record is void of a separation packet containing the facts and circumstances surrounding his separation processing.  However, his record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty).  This document identifies the authority and reason for discharge as Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, by reason of for the good of the service - in lieu of court-martial.

8.  The DD Form 214 confirms the applicant was discharged on 5 August 1987, in the grade of private (PV1)/E-1 and received a UOTHC discharge.  It also shows he was separated under the provisions of Army Regulation 635-200, chapter 10, and the reason for his separation was "for the good of the service - in lieu of trial by court-martial."  It also shows that at the time of his discharge he completed 1 year, 7 months, and 19 days of creditable active service and accrued 150 days of time lost.

9.  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.

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 3-7b, provides that a GD 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 contends that his discharge should be upgraded because he went AWOL due to the grief over his grandfather's suicide and his own medical issues.

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.

3.  The applicant's discharge proceedings are not available.  However, in the absence of evidence to the contrary, Government regularity must be presumed. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  Therefore, the UOTHC discharge he received was normal and appropriate under the regulatory guidance.

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 requirement.

5.  Based on the foregoing, therefore, there is no basis for granting the applicant's requested relief.


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)                                         AR20090018203



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ABCMR Record of Proceedings (cont)                                         AR20090018203



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