IN THE CASE OF:	  

		BOARD DATE:	    1 September 2011

		DOCKET NUMBER:  AR20110004431 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general, under honorable conditions discharge (GD). 

2.  The applicant states his UOTHC discharge should be upgraded to a GD. 

3.  The applicant provides four third-party character references 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 
23 August 1979 and was trained in and awarded military occupational specialty (MOS) 94B (Food Service Specialist).  

3.  The applicant’s record shows he earned the Army Service Ribbon.  His record documents no acts of valor or significant achievement.  

4.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five separate occasions for the offenses indicated:

	a.  21 March 1980, for failing to go to his appointed place of duty at the time prescribed; 

	b.  12 September 1980, for being derelict in the performance of his duties;

	c.  15 May 1981, for being absent without leave (AWOL) from 30 December 1980 through 7 April 1981;

	d.  3 July 1981, for failing to go to his appointed place of duty at the time prescribed and for being derelict in the performance of his duties; and

	e.  5 July 1981, for two specifications of failing to go to his appointed place of duty at the time prescribed.  

5.  On 10 August 1981, a DD Form 458 was prepared preferring court-martial charges against the applicant for violating Article 86 (6 specifications), Article 91 (2 Specifications), and Article 92 (2 specifications) of the UCMJ.  

6.  On 20 August 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, and of the procedures and rights available to him, voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, he acknowledged his understanding that he could receive a UOTHC discharge, and as a result of receiving this type of discharge he would be deprived of many or all Army benefits, that he could be ineligible for benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 



7.  On 3 September 1981, the separation authority approved the applicant’s request for discharge and directed the applicant receive a UOTHC discharge, and on 14 September 1981 the applicant was discharged accordingly.  

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows he completed 1 year, 9 months, and 6 days of creditable active military service and accrued 107 days of time lost due to AWOL.  

9.  The applicant provides four third-party character references that all attest to his good character and post-service conduct.  

10.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 
15-year statute of limitations. 

11.  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 honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

	b.  Paragraph 3-7a 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.

	c.  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.  The applicant's request for upgrade of his UOTHC discharge has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  
It also shows that after consulting with defense 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.  In his request for discharge, the applicant clearly acknowledged the possibility of receiving a UOTHC discharge and that he understood the possible effects of receiving this type of discharge.  

4.  Although the applicant’s good post-service conduct, as attested to in the third-party statements provided, is noteworthy, this factor alone is not sufficiently mitigating to support granting the requested relief.  The UOTHC discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.

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)                                         AR20110004431



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ABCMR Record of Proceedings (cont)                                         AR20110004431



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