IN THE CASE OF:	  

		BOARD DATE:	        25 AUGUST 2009

		DOCKET NUMBER:  AR20090007635 


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, to have his discharge characterized as under other than honorable conditions (UOTHC) upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that he completed four years of honorable and rewarding service and was just one month short of completing his enlistment when he went off the deep end, he had too much to drink and caused an accident which ruined his Army service.

3.  In support of his request, the applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 24 August 1992, a DD Form 293 (Application for The Review of Discharge From the Armed Forces of the United States), a personal statement and medical documentation from the Veteran’s Administration Center and a civilian physician.

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  
20 July 1988.  He completed the required training and was awarded the military occupational specialty (MOS) 13B (Cannon Crewmember).  The highest grade he attained was pay grade E-4.

3.  On 21 July 1992 a charge sheet was prepared, showing that the applicant was being charged with three violations under the UCMJ (Uniformed Code of Military Justice).  

	a.  Charge I:  Violation of the UCMJ, Article 86
Specification:  In that the applicant did, at Fort Sill, Oklahoma, on or about 0615 hours, 11 July 1992, without authority, fail to go at the time prescribed to his appointed place of duty to wit:  Duty driver for the Welcome Center.

	b.  Charge II:  Violation of the UCMJ, Article 108
Specification:  In that the applicant, did, at Fort Sill, Oklahoma, on about 11 July 1992, without proper authority, through neglect damage by striking a signal pole, a government vehicle to wit:  1992 Dodge Van, Model 350, License Number GSA 435473, the amount of said damage being in the sum of about $1,696.00.  

	c.  Charge III:  Violation of the UCMJ, Article 111
Specification:  In that the applicant did, at Fort Sill, Oklahoma, on or about 11 July 1992, near the intersection of Currie and Sheridan Roads, operate a vehicle, to wit:  a 1992 Dodge Van, Model 350, while drunk.

4.  On 21 July 1992 the applicant’s charges were reviewed by the Summary Court-Martial Convening Authority and it was adjudged for the applicant to receive a bad-conduct discharge. 

5.  On 5 August 1992, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under Army Regulation 635-200, chapter 10.  He requested this discharge based on the charges preferred against him under the UCMJ for being (absent without leave) AWOL; damaging military property; and driving while drunk.  He also acknowledged that he may be given a bad conduct or a dishonorable discharge.  The applicant acknowledged that if his request for discharge is accepted, that he may be discharged under conditions other than honorable.  The applicant stated that he understood the legal and social ramifications of that type of discharge and what it will mean for him in the future.  However, he requested a general discharge, under honorable conditions.

6.  The applicant submitted a statement on his own behalf  and did not desire to have a physical evaluation prior to his separation.

7.  The applicant’s DD Form 214 that shows he was discharged, on 24 August 1992, under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10, with an UOTHC discharge.  At the time of his discharge, the applicant had 4 years, 1 month and 5 days.

8.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service - in lieu of trial by court-martial.  An UOTHC discharge was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

9.  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 evidence of record shows that the applicant had three violations under the UCMJ; AWOL, damaging military property and driving drunk.

2.  The applicant voluntarily requested separation for the good of the service in lieu of trial by court-martial. 

3.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  

4.  The applicant was appropriately furnished a DA Form 214, reflecting an UOTHC discharge and also show that the applicant completed a total of 4 years, 1 month and 5 days of creditable service.

 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.




      _______ _   __XXX_____   ___
               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)                                         AR20080005986



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ABCMR Record of Proceedings (cont)                                         AR20090007635



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