BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021019 


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 would like his discharge upgraded.

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 and entered active duty on 16 November 1976.  He was trained in and awarded military occupational specialty (MOS) 19E (Armor Crewman) and served in MOS's 19E and 19G (Armor Reconnaissance Vehicle Crewman).

3.  The applicant's record documents no acts of valor or significant achievement.  It does include a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following six separate occasions for the offenses indicated:

	a.  18 April 1978, for sleeping on guard duty on 16 April 1978;

	b.  4 May 1978, for being absent from his appointed place of duty on 28 April 1978, disobeying a lawful order from a superior noncommissioned officer on 27 April 1978, and being absent without leave (AWOL) on 30 April 1978;

	c.  2 April 1979, for absenting himself from his appointed place of duty, guard mount, on 18 March 1979, and remaining absent through 19 March 1979;

	d.  12 June 1979, for absenting himself from his place of duty and disobeying a lawful order on 16 May 1979;

	e.  21 August 1979, for failing to go to his appointed place of duty at the time prescribed on 6 and 13 August 1979; and

	f.  20 November 1979, for failing to go to his appointed place of duty at the time prescribed on 1 November 1979.

4.  The applicant's record also shows he accrued 195 days of lost time during two separate periods of AWOL and a period of confinement between 6 July 1977 and 1 July 1980.

5.  On 11 January 1980, the applicant departed AWOL from the Personnel Control Facility, Fort Riley, Kansas.  He remained away for 173 days until returning to military control on 1 July 1980.

6.  On 9 July 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 11 January 1980 through on or about 2 July 1980.

7.  On 10 July 1980, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  He was also informed of the possible effects of a UOTHC discharge and of the rights and procedures available to him.

8.  After receiving legal counsel, the voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  In his request for discharge, the applicant acknowledged his understanding that if his request for discharge were approved, he could receive a UOTHC discharge.  He further stated he understood that receipt of a UOTHC discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

9.  On 18 July 1980, the separation authority approved the applicant's request for discharge and directed he receive a UOTHC discharge.

10.  On 27 August 1980, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 3 years, 2 months, and 29 days of creditable active military service and accrued 195 days of lost time due to AWOL and confinement.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides for members who have committed an offense or offenses for which the authorized punishment includes a punitive discharge to submit a request for discharge for the good of the service in lieu of trial by court-martial anytime after charges have been preferred.  A UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

13.  Army Regulation 635-200 provides that an HD 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.  It also 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 his discharge should be upgraded to an HD has been carefully considered.  However, the evidence does not support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge 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.

3.  The UOTHC discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of valor or significant achievement that would have supported the issuance of an HD or a GD by the separation authority at the time of his discharge or that would support an upgrade to an HD or a GD at this time.  As a result, his overall record of service is not sufficiently meritorious to support granting the requested relief.

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.

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)                                         AR20090021019



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ABCMR Record of Proceedings (cont)                                         AR20090021019



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