BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100010942 


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

2.  The applicant states:

* he served over 2 years on active duty of which 1 year was completed in a demilitarized zone on a hardship tour in Korea
* he earned the Army Achievement Medal and Overseas Service Ribbon
* he should have received a GD due to his extreme personal hardship

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
14 February 1996.  He was awarded and served in military occupational specialty (MOS) 35Q (Avionic Flight Systems Repairer).

3.  On 25 February 1998, 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 21 November 1997 to 20 February 1998.

4.  On 25 February 1998, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial.

5.  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 and elected to submit a statement in his own behalf.

6.  In his statement he indicated:

* he met Army standards and that he was a professional
* his problems began after he married and his wife began to be unfaithful to him while he was stationed in Korea
* his wife blamed the military for their problems causing him to go home to work things out; however, things only got worse

7.  On 17 June 1998, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed he receive a UOTHC discharge.  On 12 August 1998, the applicant was discharged accordingly.


8.  The DD Form 214 issued to the applicant upon his discharge confirms he was separated under the provisions of Army Regulation 635-200, chapter 10, by reason of “In Lieu of Trial by Court-Martial.”  It also shows he completed 2 years, 2 months, and 28 days of creditable active service.

9.  On 6 August 1999, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board (ADRB) concluded the applicant’s discharge was proper and equitable, and unanimously voted to deny his request for an upgrade.

10.  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 honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7b, 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 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 contends his UOTHC discharge should be upgraded to a GD.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL.  After consulting with legal counsel, 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 applicant’s period of AWOL rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.


4.  In view of the foregoing, the applicant’s request should be denied.

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)                                         AR20100010942



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ABCMR Record of Proceedings (cont)                                         AR20100010942



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