RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20080001168 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 a general discharge under honorable conditions.

2.  The applicant states that he served over two and one-half years of honorable service.  He was awarded two marksmanship badges, the Army Service Ribbon, and the Army Achievement Medal.  A general discharge will help him receive benefits so he can go back to school and received medical care.  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a Standard Form 180 (Request Pertaining to Military Records).

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 31 January 1984.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  On 29 August 1984, the applicant was given a letter of reprimand for driving under the influence of alcohol.  

4.  Around February/March 1985, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using tetra hydra cannabinol (i.e., marijuana) between on or about 16 February 1985 and on or about 26 February 1985.  His punishment was a reduction to Private, E-2, a forfeiture of $144.00 pay, 14 days extra duty, and 14 days restriction.

5.  On 25 March 1985, the applicant was confined by civil authorities for bad check writing.  He was returned to military control on 6 April 1985.  

6.  Orders dated 17 June 1985 awarded the applicant the Army Achievement Medal for the period 1 May 1984 to 1 May 1985.

7.  On 19 March 1986, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from on or about             30 October 1985 to on or about 25 February 1986.

8.  On 19 March 1986, after consulting with legal 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 no statement in his own behalf.

9.  On 19 March 1986, the applicant was placed on excess leave awaiting discharge.

10.  On 29 September 1986, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

11.  On 24 October 1986, 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 2 years, 3 months, and    12 days of creditable active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 162 days of 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 3-7b, 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 disciplinary problems began about seven months after he enlisted, culminating in an AWOL period of about four months, and then he was placed on excess leave pending discharge for about seven months.  

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

3.  Notwithstanding his award of the Army Achievement Medal, considering the overall quality of the applicant’s service the characterization of his discharge as UOTHC was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___jtm__  __cad___  __qas___  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.




      ___            jtm_    ___
                CHAIRPERSON
ABCMR Record of Proceedings (cont)                                         AR20080001168


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508