RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 March 2008
	DOCKET NUMBER:  AR20070014159 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Edward E. Montgomery

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable or general under honorable conditions.

2.  The applicant states that he has been clean and sober for 15 years and has not had any legal issues.  He had requested inpatient treatment (for his alcohol problem) but he was denied.  He did receive outpatient treatment, but it did not address the intensity of his needs.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); and three character references.

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 Regular Army on 4 March 1986.  He completed basic training and advanced individual training and was awarded military occupational specialty 52D (Power Generation Equipment Repairer).

3.  On 18 August 1988, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent from his unit from on or about 1 August 1988 until he was apprehended on or about 13 August 1988 and for two specifications of failing to go to his appointed place of duty. 

4.  On 5 January 1989, the applicant was enrolled in Track II of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

5.  On 15 March 1989, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty; for being incapacitated for the proper performance of his duties as a result of wrongful overindulgence in intoxicating liquor or drugs; for being disrespectful in language toward a noncommissioned officer who was then in the execution of his office; and for wrongfully using reproachful words towards a Private First Class.

6.  In a sworn statement, dated 20 March 1989, the applicant stated that on       15 March 1989 he went to a party with three other Soldiers.  As they were returning to the installation he asked someone to hand him the wallet that was on the dash of the car.  When he got to his barracks he walked to the Credit Union and took the ATM card out of the wallet and used it to withdraw $300.00.  He stated that he then threw the wallet with all contents, including the ATM card but excluding the cash he took, into a dumpster.  He stated he realized that the wallet he was handed was not his when he returned to the barracks, and he had no intention of returning the wallet or the money to its owner.

7.  On 18 May 1989, court-martial charges were preferred against the applicant charging him with one specification of stealing a wallet and its contents, to wit: about $25.00 in U. S. currency and an automatic teller bank card, property of Specialist G___; and one specification of stealing about $300.00 in U. S. currency, property of Specialist G___.  The memorandum accompanying the transmittal of court-martial charges indicated the applicant had received three Article 15s.

8.  On 30 May 1989, after consulting with counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf.

9.  The applicant stated that he had recently received a letter of appreciation for winning best motor pool.  He felt that he could not excel in his job and was having a hard time dealing with the pressure of always being in trouble and on restriction.  He could not cope with the Army way of life any more.  He had had numerous problems since his divorce in 1987.  He felt it would benefit the unit and the Army if he left the service.

10.  On 7 June 1989, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

11.  On 12 June 1989, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed 3 years, 3 months, and 9 days of creditable active service.  His DD Form 214 does not reflect any lost time.

12.  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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  

13.  Army Regulation 635-200, 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.  

14.  Army Regulation 635-200, 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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  In his 20 March 1989 sworn statement the applicant stated that he realized the wallet he was handed was not his when he returned to the barracks and that he had no intention of returning the wallet or the money to its owner.  From this statement, it appears that the applicant was not in such an alcoholic haze that he did not realize he was committing a crime.  

3.  The applicant’s good post-service conduct has been considered.  However, given the seriousness of the offenses for which he was charged it appears that his service was appropriately characterized as UOTHC.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__slp___  __ym____  __eem___  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.




__Shirley L. Powell___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.