IN THE CASE OF:	  

		BOARD DATE:	   29 July 2010 

		DOCKET NUMBER:  AR20100007206 


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 that:

* he completed 26 months out of the 36 months for which he enlisted 
* he raised his family and has been a model citizen since his discharge
* the trouble that he experienced during his military service was due to prejudice because he was white in a place that was seventy percent black

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 military record shows he enlisted in the Regular Army on 
29 July 1982. He served in military occupational specialty 11B (Infantryman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost Under Section 972, Title 10, USC) that he was reported absent without leave (AWOL) from 26 January to 21 February.  The applicant accepted non-judicial punishment (NJP) for this period of AWOL.

4.  On 9 August 1983, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 (five specifications) under the Uniform Code of Military Justice (UCMJ) for being AWOL during the periods indicated:

* 1 June 1983 to 11 July 1983
* 21 July 1983
* 4 – 5 August 1983
* 7 – 8 August 1983

5.  On 27 September 1983, the applicant acknowledged that he was AWOL for the period 1 June to 11 July 1983 (only).  He also consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  In his request for discharge, the applicant acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that he understood he could face substantial prejudice in civilian life because of a UOTHC discharge.


7.  On 28 September 1983, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation
635-200, and directed he receive a UOTHC discharge.  On 6 October 1983, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant upon his discharge shows that he earned the following awards and badges during his military service:

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with M16 and Grenade Bars
* Parachutist Badge

9.  The applicant's DD Form 214 confirms he was separated under the provisions of chapter 10, Army Regulation 635-200 for the good of the service.  He completed a total of 1 year of creditable active military service and he accrued 67 days of time lost due to being AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 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, in pertinent part, 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 HD or a general discharge is authorized, a UOTHC is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.


13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge 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 honorable discharge.  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 contends his UOTHC discharge should be upgraded to an HD.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. It further shows that after consulting with legal counsel and being advised of his rights and the effects of a UOTHC discharge, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. 

3.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance and it accurately reflects his overall undistinguished record of service.  Given the applicant's extensive disciplinary history his record clearly 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 of his discharge at this late date.  

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)                                         AR20100007206



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)