BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090019254 


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 an upgrade to his character of service.  

2.  The applicant states that on or about 1 May 1990, a fellow Soldier called him on base and said that they were intoxicated and needed a ride back to the barracks.  After picking them up he made a wrong turn and was pulled over by the Honolulu Police Department.  The officer then noticed that his friends had been drinking and asked him to do a field sobriety test.  After 5 field tests the officer asked him to submit to a breath test.  The applicant states that he refused because he had drunk one beer 30 minutes earlier and nothing after.  At that time he didn't know that by not taking the breath test that he would get arrested.  He was told by the company commander that he was facing an Article 15.  The applicant stated that he really did not think that was reasonable due to the fact that an E-5 had gotten a DWI two months prior and didn't receive an Article 15.  The applicant states that he asked to be moved to a different company or released from the service but he was not given either option.  He also states that by being young he felt that he was being treated unfairly.  He did what he thought was best for everyone and went home to California hoping that he could be reinstated to a new unit since he had just reenlisted for 5 years, but he was discharged instead.   

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a handwritten letter with a job listing to his counsel at The American Legion (Ms. Queen Baker).   


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.    On 23 September 1986, the applicant's enlisted in the Regular Army in pay grade E-1 for a period 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  
On 17 October 1988, the applicant extended his enlistment contract for 
5 months.  He completed his extension and on 18 August 1989, he reenlisted for 5 years.  

3.  On or about 13 May 1990, the applicant was stopped for operating a motor vehicle while consuming an alcoholic beverage.  The applicant submitted to and failed a sobriety test and was arrested and transported to jail.  He was processed, booked and released on $150.00 bail, to appear in court at 9 am on 29 May 1990.        

4.  On 23 May 1990, the applicant was reprimanded for driving or being in physical control of a motor vehicle with a blood alcohol content of .154 percent.  On that same day the applicant's senior noncommissioned officer furnished him a copy of the letter of reprimand for acknowledgement and review.  
   
5.  On 28 May 1990, the applicant elected not to make a statement.  

6.  On 5 June 1990, the applicant's commander notified him that he intended to file the letter of reprimand in his Military Personnel Records Jacket for a period of 
3 years or until he left the command or whichever occurred first.  

7.  On 6 September 1990, the applicant's duty status changed from present for duty to absent without leave (AWOL).

8.  On 8 October 1990, the applicant's duty status changed from AWOL to Drop from the Rolls (DFR).
9.  On 20 March 1991, the applicant surrendered himself to military police.  His status was changed from DFR to return to military control and from return to military control to present for duty. 

10.  On 25 March 1991, the applicant was charged with violation of Article 86 of the Uniform Code of Military Justice.  The charge sheet states that the applicant, without authority, did absent himself from his unit, B Company, 3rd Battalion, 21st Infantry, located at Schofield Barracks, Hawaii, and did remain so absent until on or about 20 March 1991.

11.  On 26 March 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under other than honorable conditions, and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged that the charges preferred against him under the Uniform Code of Military Justice authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he did not desire further rehabilitation or to perform further military service.  He acknowledged that he was making the request of his own free will and had not been subjected to any coercion.  By submitting this request, he acknowledged that he was guilty of one or more of the charges that were preferred against him.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He also stated his understanding that if his discharge request was approved he could be deprived 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 his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.  The applicant did not submit a statement in his own behalf.  He did not request a separation physical or a delay in the processing of all court-martial charges.  

12.  On 21 May 1991, the commander requested that the applicant be discharged for the good of the service under the provisions of chapter 10, 
Army Regulation 635-200.

13.  On 31 May 1991, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge.  He also directed that the applicant be immediately reduced to the lowest enlisted grade.


14.  On 18 June 1991, the applicant was discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial with a discharge under other than honorable conditions.  He completed 4 years, 2 months, and 12 days of creditable active military service this period.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  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 under other than honorable conditions discharge is normally considered appropriate.

17.  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.

18.  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 contentions that he was young and felt that he was being treated unfairly were carefully considered.   The applicant was 22 years of age at the time of the offenses.  There is no evidence and the applicant has not provided any that indicates that he was any less mature than any other Soldier of the same age who successfully completed military service.  Therefore, there is insufficient evidence to justify upgrading his character of service.  

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army for the good of the service in lieu of trial by court-martial.  His discharge under other than honorable conditions was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20090019254



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ABCMR Record of Proceedings (cont)                                         AR20090019254



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