IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021581 


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 is seeking an upgrade of his discharge to gain employment and to be afforded the opportunity to obtain the Department of Veterans Affairs (VA) benefits.  He claims he was unfairly denied leave to go home when his brother was pending brain surgery.  

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 19 March 1979.  He successfully completed one-station unit training (OSUT) at Fort Benning, Georgia and was awarded military occupational specialty 11B (Infantryman) on 14 June 1979.  He was promoted to private first class/E-3 on 
5 February 1980 and this is the highest grade he attained and held while serving on active duty.  

3.  The applicant's record shows he earned the Expert Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no individual awards or decorations nor any acts of valor or significant achievement.  

4.  The applicant’s record shows he departed absent without leave (AWOL) from his unit on 5 May 1980.  He was dropped from the rolls of the organization on 
3 June 1980 and he remained absent until he returned to military control at Fort Ord, California on 17 June 1980.  This period of AWOL equals 43 days.

5.  The applicant’s record is void of a separation packet containing the facts and circumstances surrounding his discharge processing.  The record does include a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged, in the rank of private/E-1 on 3 April 1981.  It further shows he was separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial and he was issued a UOTHC discharge.  It also shows he completed a total of 1 year, 11 months, and 2 days of creditable active military service and accrued 43 days of time lost due to being AWOL.

6.  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 honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.



7.  The same regulation 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.  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 contentions that his discharge should be upgraded to enhance his employment opportunities and to make him eligible for VA benefits because he was unjustly denied leave when his brother was pending brain surgery has been carefully considered,  However, the evidence is not sufficient to support this claim.  

2.  The available evidence does not include a separation packet containing 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 final discharge.  

3.  The applicant's DD Form 214 confirms 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 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.



5.  The available evidence indicates the applicant voluntarily requested discharge to avoid a trial by court-martial that could have resulted in receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance and his overall record of service was not sufficiently meritorious to support the separation authority issuing a GD or HD at the time of discharge, nor does it support an upgrade now.

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)                                         AR20090021581



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ABCMR Record of Proceedings (cont)                                         AR20090021581



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