IN THE CASE OF:	  

		BOARD DATE:	    14 October 2010

		DOCKET NUMBER:  AR20100009202 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to a general discharge (GD).

2.  The applicant states that:

   a.  he served faithfully in the District of Columbia Army National Guard
(DCARNG) from 1982 to 1986;

   b.  after his mother passed away on 17 July 1990, he could no longer bear his responsibilities; and 

	c.  he respectfully requests that his UOTHC discharge be upgraded to allow him to continue to receive medical care for Graves' disease from the Department of Veterans Affairs (VA).  

3.  The applicant provides no documents 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 that upon completion of 4 years and 19 days prior active Reserve Component service, he enlisted in the Regular Army on 3 October 1986.  He served in military occupational specialty 11B (Infantryman).

3.  The applicant's record shows that he was promoted to sergeant (SGT)/E-5 on 1 July 1989, and this is the highest rank he attained while serving on active duty. It also shows he earned the following awards during his active duty tenure:

* Army Achievement Medal
* Army Commendation Medal 
* Army Good Conduct Medal
* National Defense Service Medal
* Noncommissioned Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with .45 Caliber Pistol Bar
* Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars

4.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows that he was reported absent without leave (AWOL) from 30 May 1991 to 17 October 1993 for a total of 872 days time lost in Item 21 (Time Lost).  Item 18 (Appointments and Reductions) shows he was reduced from SGT to private (PVT/E-1) on 15 December 1993.

5.  On 18 October 1993, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 30 May 1991 to 18 October 1993.

6.  The applicant's official military personnel file is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), in lieu of trial by court martial.
7.  The applicant's DD Form 214 also confirms he was discharged on 21 January 1994 after completing 4 years, 11 months, and 1 day of creditable active military service.  It also confirms he received a UOTHC discharge.

8.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.

10.  Paragraph 3-7b of Army Regulation 635-200 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 requests that his UOTHC discharge should be upgraded to a GD.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial and that he received a UOTHC discharge.  This separation document carries with it a presumption of government regularity in the separation process.

3.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance and considering the length of his AWOL, his service clearly did not support a GD or HD at the time of his discharge nor does it support an upgrade now.

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)                                         AR20100009202



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)