IN THE CASE OF: BOARD DATE: 5 June 2008 DOCKET NUMBER: AR20080004568 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, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge. 2. The applicant states, in effect, that he had only six months left to do and was assured by his commander that the discharge would not hurt him. He claims he was an outstanding Soldier and won awards, and explains that it was only after he was hurt and when he complained about it, that is when the discharge came about. 3. The applicant provides a self-authored statement 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 that while serving as a member of the Army National Guard (ARNG), the applicant was involuntarily ordered to active duty on 26 May 1978. His Personnel Qualification Record (DA Form 2-1) shows he entered active duty as a private/E-1 (PV1), and that this is the highest rank he held while serving on active duty. Item 9 (Awards, Decorations & Campaigns) shows that during his active duty tenure, he earned the Expert Marksmanship Qualification Badge with Rifle Bar and Sharpshooter Marksmanship Qualification Badge with Grenade Bar. Item 21 (Time Lost) contains entries confirming the applicant accrued 4 days of time lost due to being absent without leave (AWOL) on two separate occasions between 5 February and 4 July 1979. 3. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. The record does reveal a disciplinary history that includes his acceptance of non-judicial 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: 30 August 1978 - for two specifications of failing to go to his appointed place of duty at the prescribed time; 9 February 1979 - for disobeying a lawful order and appearing in an improper uniform; 20 February 1979 - AWOL; 9 April 1979 - for being absent from his place of duty without authority and for dereliction of duty; and 7 June 1979 - failure to go to his appointed place of duty at the time prescribed and disobeying a lawful order. 4. On 30 May 1979, a Charge Sheet (DD Form 458) was prepared that preferred court-martial charges against the applicant for violating Articles 86 and 91 of the UCMJ as indicated: Article 86 - 4 specifications by failing to go at the time prescribed to his appointed place of duty on 12, 14, 21, and 23 May 1979; and Article 91 - 3 specifications by disobeying the lawful orders of superior noncommissioned officers on 19, 23, and 25 May 1979. 5. On 30 May and 1 June 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a request for discharge, and of the rights available to him. Subsequent to this counseling, the applicant voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial. In his discharge request, the applicant indicated that he understood that if his request for discharge were approved, he could receive an UOTHC discharge, which would deprive him of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of many rights and benefits as a veteran under both Federal and State law. He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life because of an UOTHC discharge. 6. On 9 July 1979, the separation authority approved the applicant's discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service, and directed the applicant receive an UOTHC discharge. On 13 July 1979, the applicant was discharged accordingly. The separation document (DD Form 214) issued to the applicant upon his discharge confirms he completed a total of 1 year, 1 month, and 14 days of creditable active military service, and that he accrued 4 days of time lost due to being AWOL. 7. On 1 July 1981, after reviewing the applicant's application and all evidence submitted and the applicant's entire record of service, the Army Discharge Review Board (ADRB) determined the applicant's discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge. 8. 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record during the current enlistment. An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper. DISCUSSION AND CONCLUSIONS: 1. The applicant's request that his UOTHC be upgraded because his commander informed him the discharge would not adversely impact him was carefully considered. However, there is insufficient evidence to support this claim 2. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on five separate occasions. 3. The evidence of record also confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army 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. 4. The applicant, after being fully advised of the impact and effect of an UOTHC discharge by legal counsel, voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge. The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance, and his overall record of service clearly did not support the issue of a GD or HD by the separation authority at the time, nor does it support an upgrade now. 5. 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 has 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 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) AR20080004568 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080004568 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1