IN THE CASE OF:	

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20100000585 


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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).  

2.  The applicant states he was unjustly discharged.  He believes he had the right to be returned to Fort Lewis, Washington to face charges.  

3.  The applicant provides self-authored statements and several miscellaneous documents from his record 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 4 March 1980, and was trained in and awarded military occupational specialty (MOS) 
51B (Carpentry and Masonry Specialist).  

3.  The applicant's record shows he entered active duty as a private/E-1 and never advanced beyond that rank while serving on active duty.  It further shows he earned no individual awards or decorations.  His record documents no acts of valor or significant achievement.  

4.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:

   a.  30 May 1980, for being derelict in the performance of his duty on 27 April 1980 and for disobeying a lawful order on 27 April 1980; and 

   b.  6 June 1980, for being absent without leave (AWOL) from on or about 
30 April through 23 May 1980.

5.  On 19 September 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for three specifications of violating Article 86 of the UCMJ by being AWOL from on or about 10 June 1980 through 2 August 1980; from on or about 5 through 22 August 1980; and from on or about 22 August through 17 September 1980.  

6.  The applicant had five periods of AWOL between April and September 1980 that equals 116 days of lost time.

7.  On 19 September 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.  After receiving legal counsel, the applicant 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).  





8.  In his request for discharge, the applicant acknowledged he understood 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 9 October 1980, the separation authority approved the applicant's request for discharge and directed he be issued a UOTHC discharge, and on 
14 November 1980, the applicant was discharged accordingly.  

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge on 14 November 1980 shows he completed 4 months and 11 days of creditable active military service during the period and accrued 116 days of lost time due to being AWOL. 

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 is normally 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 in paragraph 3-7a.  It states 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.  

14.  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 he was denied the right to face charges and his discharge was unjust 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.  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.  Contrary to the applicant's assertion that he was not allowed to face his charges, the record clearly shows after a court-marital charge was preferred against the applicant, he consulted with legal counsel and after being properly advised of the basis for the contemplated court-martial and it effects, the effects of a UOTHC discharge and of the rights available to him, he voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.  

4.  The UOTHC discharge the applicant was issued was normal and appropriate under the regulatory guidance.  His record documents no acts of valor and did not support the issuance of an HD or a GD by the separation authority at the time of his discharge, nor does it support an upgrade to an HD or GD at this time.  As a result, his overall record of service is not sufficiently meritorious to support granting the requested relief.

5.  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)                                         AR20100000585



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)