IN THE CASE OF:	  

		BOARD DATE:	    17 May 2011

		DOCKET NUMBER:  AR20100027865 


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 an honorable discharge (HD).

2.  He states he reenlisted and he had received an honorable discharge before reenlisting.  After he reenlisted, he had marital problems and asked for leave to take care of the problems.  His commander at the time denied his request.  He states he had no real problems during his Army service and was good at his artillery military occupational specialty (MOS).  He has medical problems from his service in the Army – "ear drum damage" and other service-related problems from doing his job as an artilleryman – and would like to get medical attention through the Department of Veterans Affairs (VA).

3.  He provides no additional evidence in support of his request.

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 enlisted in the Oregon Army National Guard on 1 December 1978.  He entered active duty for training (ADT) on 4 January 1979 for initial entry training and was honorably released from ADT on 31 March 1979.  After completing training, he was awarded MOS 13B (Cannon Crewman).

3.  Orders 030-309 issued by Headquarters, Sixth U.S. Army, dated 12 February 1980, ordered him to involuntary active duty with a reporting date of 24 March 1980.  Orders 056-308 issued by the same headquarters on 20 March 1980 changed his reporting date to 2 April 1980.  His record shows he reported as ordered.

4.  Orders 147-8181, issued by Headquarters, 9th Infantry Division and Fort Lewis, dated 29 July 1981, show he was honorably discharged effective 28 July 1981 to immediately enlist in the Regular Army for a period of 3 years effective 29 July 1981.

5.  The record shows after his enlistment he received punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being drunk and disorderly on or about 27 March 1982.

6.  A DD Form 458 (Charge Sheet) shows he was charged with one specification of violating Article 86, UCMJ, by being absent without leave (AWOL) from 14 June to 23 September 1982.

7.  On 29 September 1982, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  Prior to submitting his request, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and the rights available to him.

8.  In his voluntary request for discharge, he indicated he understood if his request were accepted he could receive a UOTHC discharge and that by submitting his request he was admitting he was guilty of the charge against him or a lesser-included offense.  He further acknowledged he understood if he received a UOTHC discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

9.  On 12 November 1982, his acting commander recommended approval of his request, stating he had been AWOL because of family problems, desired a discharge because he no longer desired to remain in the service, and stated if returned to duty he would again go AWOL.  His acting commander further noted he had been counseled regarding the right to apply for a hardship discharge or compassionate reassignment, but, fully understanding the requirements for application and approval, declined the opportunity and instead elected to pursue a discharge under the provisions of Army Regulation 635-200, chapter 10.

10.  On 23 November 1982, the separation authority approved his request for discharge and directed the issuance of a UOTHC Discharge Certificate.  On 3 December 1982, he was discharged accordingly and his service was characterized as UOTHC.  He completed 1 year, 7 months, and 19 days of total active military service with 101 days of lost time due to being AWOL.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

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

	b.  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.

	c.  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 evidence of record does not support the applicant's request for upgrade of his UOTHC discharge.

2.  He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His record of service after his Regular Army enlistment includes one instance of NJP and shows he was charged with an offense punishable under the UCMJ with a punitive discharge.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD or a GD.

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)                                         AR20100027865



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ABCMR Record of Proceedings (cont)                                         AR20100027865



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