BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100023567 


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 discharge under other than honorable conditions (UOTHC).

2.  The applicant states he is requesting an upgrade of his discharge in order to be eligible for medical benefits.

3.  The applicant provides no additional evidence 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 record shows he enlisted in the Regular Army on 6 March 1979 and was trained in and awarded military occupational specialty 13B (Cannon Crewman).  The record further shows private first class/E-3 is the highest rank/grade he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

3.  On 1 January 1980 while serving in Germany, the applicant was absent without leave (AWOL) from his unit.  He was dropped from the rolls of his organization on 5 February 1980.  He remained absent for 165 days until being returned to military control on 18 June 1980.

4.  On 3 July 1980 after court-martial charges were preferred against him, he 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 Uniform Code of Military Justice (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 Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.

5.  In his request for discharge, the applicant acknowledged that by requesting discharge he was admitting he was guilty of the charge against him or of a lesser included offense therein contained that also authorized the imposition of a punitive discharge.  He also acknowledged 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 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.

6.  On 25 August 1980, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of conduct triable by court-martial.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he held the grade of private/
E-1 and received a UOTHC discharge.  It further shows he completed 11 months and 26 days of creditable active military service and accrued 165 days of lost time due to AWOL.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.

8.  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 a general discharge (GD) is authorized, a discharge UOTHC is normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

10.  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 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's contention that his discharge should be upgraded in order for him to receive medical benefits has been carefully considered.  However, although his current medical condition is unfortunate, authorization for benefits alone is not a basis for upgrading his discharge.

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 legal counsel the applicant voluntarily requested discharge for the good of the service 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 or significant achievement that would have supported the issuance of an HD or a GD by the separation authority at the time of his discharge or that would support an upgrade to an HD or a GD 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 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)                                         AR20100023567



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ABCMR Record of Proceedings (cont)                                         AR20100023567



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