BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090021180 


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, that his under other than honorable conditions (UOTHC) discharge be upgraded. 

2.  The applicant states that he believes that he has become an upstanding man and made some achievements since being discharged.  He further states that he was young and full of energy and the charges he received were a cry for help.  

3.  The applicant provides a copy of an ITT Technical Institute Associate of Applied Science Degree and a character reference letter in support of this 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's record shows he enlisted in the Army Delayed Entry Program on 19 March 1990 and enlisted in the Regular Army on 23 August 1990 for a period of 4 years.  He was trained in, awarded, and served in military occupational specialty 11M (Fighting Vehicle Infantryman).  Records further show the highest rank/grade he attained was private first class (PFC)/E-3.

3.  A DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Articles 121, 128, and 121 of the Uniform Code of Military Justice (UCMJ) as follows:

a. Article 121, stealing a compact disc, of a value of about $10.95, the
property of the Army & Air Force Exchange Service (AAFES) on or about 7 November 1991;

b. Article 128, choking another Solider on the neck with his hands on or about 26 October 1991; and

c. Article 134, drunk and disorderly on or about 26 October 1991.

4.  On 16 January 1992, the applicant submitted a request for discharge for the good of the service under the provisions Army Regulation 635-200, chapter 10.  In his request for discharge the applicant indicated that he had not been coerced into requesting discharge and had been advised of the implications that were attached to the request.

5.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to him.  He further acknowledged that he understood 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant elected not to submit a statement on his own behalf.

6.  On 25 March 1992, the separation authority approved the applicant's request for discharge and directed that he receive an UOTHC discharge.  On 13 May 1992, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 1 year, 8 months, and 23 days of creditable active military service.

7.  The applicant provided a character reference letter written by his pastor, who described him as being honest, sincere and trustworthy, possesses a positive attitude, very faithful, energetic, and sees the positive in any given situation. 

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

9.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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 request that his UOTHC discharge be upgraded was carefully considered.

2.  Evidence of record shows the applicant's request for separation under the provisions of chapter 10, Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

3.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record reveals a disciplinary history that included assaulting another Solider, being drunk and disorderly, and of larceny of AAFES property totaling $10.95.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of Army personnel.  This misconduct and lost time also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

5.  The applicant was appropriately issued a UOTHC discharge based on the facts of the case.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement

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)                                         AR20090021180





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ABCMR Record of Proceedings (cont)                                         AR20090021180



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