IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100018476 


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 that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.

2.  The applicant states had he not been erroneously told by his recruiter that he would not have to go to basic training and would retain the medical specialist military occupational specialty (MOS) he held in the Army National Guard, he would not have enlisted in the Regular Army and would not have received a UOTHC discharge.

3.  The applicant further states he has suffered the effects of his UOTHC discharge for many years which should also be considered by the Board.  He requests the Board correct the injustice rendered to him.

3.  The applicant provides the following documents in support of the application:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 October 1981
* DD Form 214, dated 8 April 1982 
* DA Form 2-1 (Personnel Qualification Record)

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 served in the Army National Guard and attended active duty for training in MOS 91B (Medical Specialist) between 5 July 1981 and 9 October 1981.

3.  On 27 November 1981, the applicant enlisted in the Regular Army.  The DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) and DA Form 3286-66 (Statement for Enlistment – Delayed Entry Program) completed during the enlistment process confirm he enlisted in the Regular Army for the training of choice option for training in career management field 11 (Infantry).  The documents fail to show he was made any promises regarding retention of his medical specialist MOS or a waiver of attendance at basic combat training.

4.  The applicant's record shows upon his entry on active duty on 27 November 1981, he was assigned to Fort Benning, Georgia, to attend training.  His record documents no acts of valor or significant achievement.

5.  On 6 January 1982, the applicant departed absent without leave (AWOL) from his unit at Fort Benning and on 5 February 1982 he was dropped from the rolls of his organization.

6.  On 8 March 1982, after remaining away for 61 days, the applicant was returned to military control at the Personnel Control Facility, Fort Dix, New Jersey.

7.  On 10 March 1982, 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) by being AWOL from on or about 6 January through on or about 8 March 1982.

8.  On 12 March 1982, 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).

9.  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.

10.  On 19 March 1982, the separation authority approved the applicant's request for discharge and directed he receive a UOTHC discharge.  On 8 April 1982, the applicant was discharged accordingly.

11.  The DD Form 214 issued to the applicant upon his discharge shows he completed 2 months and 10 days of creditable active military service on the enlistment and that he accrued 61 days of lost time due to AWOL.

12.  On 1 August 1984, after carefully reviewing the applicant's entire military record and the issues presented, the Army Discharge Review Board (ADRB) determined the applicant's discharge was proper and equitable and voted unanimously to deny his request for an upgrade of his discharge and to change the narrative reason for separation.

13.  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 any time after charges have been preferred.

14.  Chapter 10 of Army Regulation 635-200 further indicates 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 under honorable conditions discharge if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

15.  Army Regulation 635-200 further 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  It also 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an honorable discharge based on the erroneous advice he received from his recruiter and because he has suffered from this injustice for many years 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 honorable discharge or a general discharge by the separation authority at the time of his discharge, nor does it support an upgrade to an honorable discharge or general discharge at this time.  As a result, his overall record of service is not sufficiently meritorious to support granting the requested relief.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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 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)                                         AR20100018476



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ABCMR Record of Proceedings (cont)                                         AR20100018476



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