IN THE CASE OF: BOARD DATE: 10 February 2011 DOCKET NUMBER: AR20100018930 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 discharge. 2. The applicant states he had an excellent military record prior to the incident which led to his discharge. He contends that his misconduct was a one-time incident. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 military records show that he enlisted in the Regular Army on 3 February 1984, was awarded the military occupational specialty of armor crewman, and was promoted to pay grade E-5. 3. The applicant's discharge packet is not available for the Board's review. 4. However, on 10 October 1995, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his UOTHC discharge. In the ADRB's decisional document it was shown that: a. On 15 May 1992, the applicant was charged with assault upon a female by shooting at her with a dangerous weapon, a loaded firearm, as to endanger human life; and being absent without leave (AWOL) from 5 to 8 May 1992. b. On 19 May 1992, the applicant consulted with legal counsel and requested discharge under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10, for the good of the service. c. The applicant was found qualified for separation after a physical and mental evaluation. d. On 28 July 1992, the applicant was given a UOTHC discharge after his request was approved by the appropriate authority. 5. Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation 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 UOTHC discharge is normally considered appropriate. 6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. 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 applicant's record is absent of evidence to show he had any incident of misconduct or indiscipline other than assault upon a female by shooting at her with a dangerous weapon, a loaded firearm, as to endanger human life; and four days AWOL. 2. However, those are exceptionally serious charges which certainly warranted a UOTHC discharge even when his prior unblemished service was taken into consideration. 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) AR20100018930 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100018930 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1