IN THE CASE OF:	  

		BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100014904 


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.

2.  He states years ago his discharge was upgraded to a general discharge.  He is homeless and needs assistance.

3.  He provides a DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 records show he enlisted in the Regular Army on 30 July 1979 for 3 years.  He completed training and was awarded military occupational specialty 16R (Air Defense Artillery Short Range Gunnery Crewman).  He was advanced to pay grade E-3 on 10 August 1980.

3.  On 15 August 1980, he was reported absent without leave (AWOL) and he was returned to military control on 26 August 1980.  

4.  On 27 August 1980, he was punished under Article 15, Uniform Code of Military Justice for being AWOL from 15 August to 26 August 1980.

5.  He was again reported AWOL on 9 December 1980 and dropped from the rolls on 8 January 1981.  He was returned to military control on 3 February 1981.

6.  On 23 February 1981, a DD Form 458 (Charge Sheet) was prepared by the Commander, Battery B, 3rd Battalion (Airborne), 4th Air Defense Artillery, 82nd Airborne Division.  He was charged with one specification of being AWOL from 15 December 1980 to 30 January 1981; one specification of dereliction in the performance of his duties by failing to properly secure and store a .45 caliber pistol while on duty as a battery armorer on 8 December 1980; and one specification of uttering dishonorable checks from 14 December to 31 December 1980.  

7.  On 26 February 1981, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be issued a UOTHC discharge and furnished a UOTHC Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration. He waived his rights and elected not to submit a statement in his own behalf.

8.  On 4 March 1981, his unit commander recommended approval of his request for discharge with the issuance of a UOTHC Discharge Certificate.  The unit commander stated that personal problems had caused the applicant, who was once an outstanding Soldier, to commit the serious offenses.  The applicant admitted his guilt and he had a suitable plan to solve his personal problems.  



9.  On 11 March 1981, his battery commanded recommended approval of the applicant's discharge with the issuance of a UOTHC Discharge Certificate.  The 
battery commander stated the applicant's performance in the unit had been totally unacceptable.  He was administered a field grade Article 15 for 11 days of unauthorized absence.  Less than 4 months later he repeated the offense and remained absent a total of 49 days.  Prior to departing AWOL, the applicant locked a .45 caliber pistol in his wall locker and during his absence issued 4 personal checks in excess of $400.00 at military installations.  The battery commander also stated that regardless of the applicant's personal problems, this type of behavior was unacceptable and could not be tolerated.  The applicant's potential for rehabilitation appeared doubtful and trial by court-marital and further retention in the military would neither benefit the applicant nor the Army.  

10.  On 20 March 1981, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the issuance of a UOTHC Discharge Certificate and the applicant's reduction to the lowest enlisted grade.

11.  On 6 April 1981, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with a UOTHC discharge in pay grade E-1.  He was credited with completing 
1 year, 6 months, and 11 days of net active service and 55 days of lost time.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  There is also no indication his UOTHC discharge was upgraded to a general discharge.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 stated a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.
15.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contention that his discharge should be upgraded has been noted.  However, his contention does not support a change to his UOTHC discharge.  The evidence shows he departed AWOL and was subsequently returned to military control.  He again departed AWOL and was dropped from the rolls.  Upon his return to military control, he was charged with being AWOL 45 days, failing to properly secure and store a .45 caliber pistol, and uttering dishonorable checks.  

3.  The evidence also shows he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He acknowledged he understood he could be furnished a UOTHC Discharge Certificate.  His unit commander stated that personal problems had caused the once outstanding Soldier [the applicant] to commit the serious offenses.  The applicant admitted his guilt and had a suitable plan to solve his personal problems.

4.  He has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the characterization of his discharge.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would have jeopardized his rights.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.

5.  His desire to have his discharge upgraded so that he can qualify for medical and/or other benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits.

6.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20100014904



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100014904



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1