IN THE CASE OF:	  

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090020125 


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.

2.  The applicant states the following:

   a.  He wants his discharge upgraded so he can get benefits when he gets out of prison;
   
   b.  He’s having problems finding help on the outside because he’s African American, over 50 years old, has previous criminal record, and is a sex offender; 

	c.  He needs the Army’s help to find a place to live, work for pay and volunteer work, raising his own family, food stamps, social security disability benefits, medical aid, and mental treatment. 

3.  The applicant provides no additional documents in support of his application.

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 11 November 1976 for a period of three years.  

3.  Item 27 (Remarks) on the applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows he was arrested by civil authorities in Arcadia, FL for possession of marijuana.  His DA Form 2-1 shows he was convicted, given credit for time served, and released to military police in Orlando, FL on 16 February 1977.  

4.  Item 21 (Time Lost) on his DA Form 2-1 shows he was imprisoned and/or absent without leave (AWOL) from 4 December 1976 to 1 October 1977.  

5.  On 11 October 1977, charges were preferred against the applicant for being AWOL from 19 February 1977 to 2 October 1977.

6.  The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He submitted statements in his own behalf.  He stated he wanted a chapter 10 discharge because of family problems.  He had an aunt in the hospital with cancer and a mother who worried too much.  He wanted to be there to help them.  

7.  The separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with issuance of a UOTHC discharge.

8.  The applicant was discharged on 23 November 1977 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  He had completed 2 months and 11 days of active military service with 343 days of lost time.  

9.  There is no evidence which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.
10.  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 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 discharge UOTHC is normally considered appropriate.

11.  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 regarding the reasons he wants his discharge upgraded are acknowledged.  However, these issues are not sufficiently mitigating to warrant relief in this case.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  

3.  The applicant's record of service shows he was arrested by civil authorities for possession of marijuana.  He was also charged for being AWOL from February 1977 to October 1977.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a fully honorable or general under honorable conditions discharge.

4.  The evidence of record does not indicate the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.







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)                                         AR20090020125





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ABCMR Record of Proceedings (cont)                                         AR20090020125



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