IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100023909 


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 discharge.

2.  He states he is trying to start a new career because his profession as a concrete finisher has left him with severe arthritis in his hands.  He had three bones removed from his left hand, which he can no longer use.  He contends he is in need of the same treatment for his right hand.

3.  He states he is trying to go back to school so he can earn a degree to better his chances of employment in the workforce and to better provide for his family.  It has been nearly 3 years since his disability has taken this part of his life away from him.  He asks the Board to consider his request worthy of upgrade.

4.  He did not provide any additional documentation. 

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.  His record shows he enlisted in the Regular Army on 7 May 1980.  After completion of basic combat and advanced individual training, he served in military occupational specialty 13B (Cannon Crewman).

3.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows in:

* Item 9 (Awards, Decorations and Campaigns) no special recognitions, acts of valor, or campaign credit
* Item 18 (Appointments and Reductions) his highest rank/grade was private (PV1)/E-1
* Item 21 (Time Lost) he had 290 days of time lost due to being absent without leave (AWOL) or in a deserter status

4.  His record contains a DD Form 458 (Charge Sheet), dated 2 September 1981.  This form shows he was charged with two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being:

	a.  AWOL from 22 to 29 September 1980, and

	b.  AWOL from 1 October 1980 to 12 July 1981.

5.  On 23 September 1981, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  Prior to completing his request, he consulted with his appointed attorney, who advised him of his rights.  The applicant stated:

	a.  He was making the request of his own free will and he had not been subjected to coercion whatsoever by any person;

	b.  He had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense that allowed the imposition of a bad conduct or a dishonorable discharge;

	c.  He did not desire further rehabilitation or to continue service in the military;


	d.  He understood that if his request were accepted, he could be discharged under conditions other than honorable and he understood the effects of an under other than honorable discharge;

	e.  He understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including many or all benefits administered by the Veterans Administration;

	f.  He understood he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge;

	g.  He understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

	h.  He was advised he could submit any statements he desired to accompany his request for discharge; however, he elected not to do so.

6.  His chain of command endorsed his request for discharge.   

7.  On 30 September 1981, the separation authority, a major general, approved his request for discharge in lieu of trial by court-martial and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  Accordingly, on 14 December 1981 he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, with an under other than honorable conditions discharge in the rank/grade of PV1/E-1.  He had completed 9 months and 18 days of net active service, and 4 months and 23 days of prior inactive service.  He had 290 days of time lost due to AWOL.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 

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 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.  His request to upgrade his under other than honorable conditions discharge was carefully considered.

2.  He has not submitted sufficient evidence or a convincing argument to support his request.  The evidence shows he was charged with two specifications of violating Article 86 of the UCMJ for going AWOL for a total of 290 days.

3.  He voluntarily submitted a request for discharge for the good of the service - in lieu of trial by court-martial.  His chain of command supported his request and his voluntary request was subsequently approved by the appropriate separation authority.

4.  The evidence shows 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.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.

5.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows he was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

6.  The ABCMR does not upgrade discharges solely for the purpose of establishing eligibility for other veterans programs or benefits.

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100023909



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ABCMR Record of Proceedings (cont)                                         AR20100023909



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