IN THE CASE OF:
BOARD DATE: 16 June 2011
DOCKET NUMBER: AR20100029453
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) to a general discharge (GD) under honorable conditions.
2. The applicant states:
a. he wants to reenter service in the U.S. Army and
b. prior to his discharge he was informed he would receive a GD because he returned to his post on his own.
3. The applicant provides:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Army Review Boards Agency letter, dated 12 November 2010
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
CONSIDERATION OF EVIDENCE:
1. The applicant's military record shows he enlisted in the Regular Army on 9 April 1996. He served in military occupational specialty 11C (Indirect Fire Infantryman).
2. On 18 February 1997, 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) for being absent without leave (AWOL) from on or about 28 January 1997 to an unspecified date.
3. A DD Form 616 (Report of Return of Absentee), dated 25 June 1997, shows the applicant surrendered to military control on 24 June 1997.
4. The applicant's official military personnel file is void of a separation packet containing the specific facts and circumstances surrounding his separation processing. However, the record does contain a properly-constituted DD Form 214 that shows he was discharged 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).
5. The applicant's DD Form 214 confirms he accrued lost time during the period 28 January to 23 June 1997. It also shows he was discharged on 25 September 1997 after completing 1 year and 20 days of creditable active military service. He received a UOTHC character of service.
6. On 6 March 2009 after having carefully reviewed the applicant's record and the issues he presented, the Army Discharge Review Board concluded the applicant's discharge was proper and equitable and voted to deny his request for an upgrade.
7. 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 GD is authorized, a UOTHC discharge is normally considered appropriate.
8. Paragraph 3-7b of Army Regulation 635-200 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his UOTHC discharge should be upgraded to a GD.
2. The applicant's record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge. This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial and that he received a UOTHC character of service. This separation document carries with it a presumption of government regularity in the separation process.
3. In connection with such a discharge, the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.
Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial. In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.
4. Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance. Considering the length of his AWOL, his service clearly did not support a GD at the time of his discharge and it does not support an upgrade now.
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) AR20100029453
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ABCMR Record of Proceedings (cont) AR20100029453
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