BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021518 


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 his discharge was improper since he was administered non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  He further states his request should be considered as he is applying for Department of Veterans Affairs (VA) healthcare and he must have a GD as a minimum requirement.

3.  The applicant provides no documentary evidence 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 27 June 1978.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman) and private (PV2)/E-2 is the highest rank/grade he attained while serving on active duty.

3.  The applicant's record shows he earned the Marksman Marksmanship Qualification Badge with Rifle Bar during his active duty service.  His record documents the receipt of no individual awards and/or decorations and no acts of valor or significant achievement.

4.  The applicant’s record does show he accepted NJP under the provisions of Article 15, UCMJ on 29 January 1979, for being absent without leave (AWOL) from 3 through 14 January 1979.  It also shows he accrued 77 days of time lost during three separate periods of AWOL between 9 July and 9 October 1979.

5.  On 4 September 1979, 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 23 July to on or about 4 September 1979.

6.  On 7 September 1979, the applicant consulted with legal counsel and he was advised of the basis for the pending trial by court-martial, the maximum permissible punishment authorized, the significance of a sentence to a punitive discharge, the possible effects of a UOTHC discharge, and of the procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge 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.

7.  In his request for discharge, the applicant acknowledged he understood if his request was approved, he could be issued a UOTHC discharge and that he had been advised of and understood the possible effects of such a discharge.  He also acknowledged his understanding he would be deprived of many or all Army benefits, he would be ineligible for many or all benefits administered by the VA, and he could be deprived of many or all benefits as a veteran under both Federal and State laws.  He further indicated his understanding that he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.

8.  On 20 September 1979, the separation authority approved the applicant's request for discharge and directed the applicant receive a UOTHC discharge.  On 9 October 1979, the applicant was discharged accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge on 9 October 1979 shows he completed a total of 1 year and 26 days of creditable active service and accrued 77 days of time lost due to AWOL.

10.  There is no indication the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15 year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 discharge (HD) or GD is authorized, a UOTHC discharge is normally considered appropriate.

12.  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.  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 discharge should be upgraded so he can gain employment and eligibility for VA benefits because he had received NJP has been carefully considered.  However, the evidence is not sufficient to 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. The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record confirms the applicant accrued 77 days of time lost during three separate periods of AWOL and that he received NJP for one of these three periods.  It further shows a court-martial charge was preferred 


against him for his last period of AWOL, from on or about 23 July 1979 to on or about 4 September 1979, and that he voluntarily requested discharge in lieu of trial by court-martial to avoid a punitive discharge.

4.  The applicant's overall record of service did not support the issue of a GD by the separation authority at the time of his discharge and does not support an upgrade now.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  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)                                         AR20090021518



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ABCMR Record of Proceedings (cont)                                         AR20090021518



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