IN THE CASE OF:	  

		BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20100000863 


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 hoping his discharge can be upgraded in recognition of his overall record of dedicated service.  

3.  The applicant provides a self-authored statement, DD Form 293 (Application for Review of Discharge), and three third-party statements 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 22 June 1982.  He was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewman) and specialist four (SP4)/E-4 is the highest rank he attained while serving on active duty. 

3.  The applicant's record shows he earned the Army Achievement Medal, Army Service Ribbon, Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar and Expert Marksmanship Qualification Badge with Grenade Bar.  His record documents no acts of valor. 

4.  The applicant’s record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.  

5.  On 19 December 1984, he accepted NJP for using marijuana.  His punishment for this offense included a suspended reduction to private first class (PFC)/E-3.  This suspended reduction was vacated on 31 January 1985, as a result of the applicant writing a bad check on 13 January 1985, and being disrespectful in language towards a noncommissioned officer (NCO) in the performance of his duty on 22 January 1985.

6.  On 5 February 1985, the applicant accepted NJP for being disrespectful in language towards an NCO on 22 January 1985.

7.  The record also shows the applicant accrued 54 days of lost time during two separate periods of being absent without leave (AWOL) between 28 May and 
28 July 1985.  

8.  On 29 May 1985, the applicant departed AWOL from his unit at Fort Sill, Oklahoma.  He remained away for 30 days until returning to military control at the Personnel Control Facility, Fort Ord, California on 22 July 1985.

9.  On 31 July 1985, 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 29 May through 22 July 1985.

10.  On 31 July 1985, 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).  
11.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge, he was admitting he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed 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.

12.  On 22 October 1985, the separation authority approved the applicant's request for discharge and directed that he be issued a UOTHC discharge.  On 
8 November 1985, the applicant was discharged accordingly.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 2 months, and 21 days of creditable active military service and accrued 54 days of lost time due to being AWOL. 

13.  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.

14.  The applicant provides three third-party statements supporting his request.  These individuals all attest to his good character and excellent post service conduct.  

15.  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.

16.  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.  


17.  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 his discharge should be upgraded to an HD in recognition of his dedicated service 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 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 an upgrade of his discharge.  Further, although his post service conduct, as attested to in the third-party statements provided, is noteworthy; this factor alone is not sufficiently mitigating to support granting the requested relief.  
 
4.  In order to justify correction of a military record the applicant must show 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)                                         AR20100000863



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ABCMR Record of Proceedings (cont)                                         AR20100000863


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