BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090020641 


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 that his discharge should be upgraded because:

* he fulfilled his 2-year enlistment obligation
* he served his country dutifully and honorably
* circumstances that were not military issues caused him to go absent without leave (AWOL) and unfortunately a chapter 10 discharge

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of his DA Form 1695 (Oath of Extension of Enlistment), dated 23 April 1991.

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 he enlisted in the Regular Army on 
6 September 1990.  He was trained in and awarded military occupational specialty 16S (Man Portable Air Defense System (MANPADS) Crewmember).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.

3.  On 17 February 1993, a DD Form 458 (Charge Sheet) preferred court-martial charges against the applicant for being AWOL from on or about 5 May 1992 to on or about 9 February 1993.

4.  On 18 February 1993, the applicant was voluntarily placed on excess leave status.  The applicant acknowledged that he understood that excess leave would be without pay and allowances and that no leave would be accrued during that period.

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a properly constituted DD Form 214 which shows the applicant was discharged on 16 April 1993 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial and that he received a UOTHC discharge. It further shows that the applicant was placed on excess leave status from
18 February 1993 to 16 April 1993.  At the time of his discharge he had completed a total of 1 year, 10 months, and 6 days of active service and he had accrued 274 days of time lost due to being AWOL.

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

7.  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.

8.  Paragraph 3-7b of the same regulation 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he fulfilled his 2-year obligation was carefully considered but found to be lacking in merit.

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The applicant's DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  The DD Form 214 also confirms that the applicant served only 1 year, 10 months, and 6 days of total creditable active service.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  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.

4.  Absent any evidence of record or independent evidence provided by the applicant to the contrary, it is presumed that the applicant's discharge processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20090020641



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ABCMR Record of Proceedings (cont)                                         AR20090020641



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