IN THE CASE OF:	  

		BOARD DATE:	    29 July 2010

		DOCKET NUMBER:  AR20100000376 


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 of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. 

2.  The applicant states, in effect, after serving in Desert Storm he was proud to have served his country but at the same time he was having trouble dealing with everyday problems and he turned to alcohol which made his problems worse.  The applicant states that he did not know how to handle his problems.  The applicant concludes by stating an upgrade of his discharge will help his family to obtain a VA mortgage.     

3.  The applicant provides three character reference letters 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 29 May 1990 and enlisted in the Regular Army on 12 June 1990 for a period of 4 years.  He was trained in, awarded, and served in military occupational specialty 11B (Infantryman).  Records further show the highest rank/grade he attained was private first class (PFC)/E-3.

3.  On 8 July 1994, court-martial charges were preferred against the applicant for one specification of being absent without leave (AWOL) from 8 September 1992 through 30 June 1994.  

4.  On 8 July 1994, 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 a discharge and he 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 a 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 laws.  The applicant elected not to submit a statement on his own behalf.

6.  On 4 August 1994, the separation authority approved the applicant's request for discharge and directed that he be issued a UOTHC discharge.  On
23 August 1994, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 2 years, 4 months, and 6 days of creditable active military service.

7.  The applicant provided three character reference letters written by his former coworkers, who described him as being consistently motivated, of good moral character, dedicated and committed to his work, efficient, and willing to give assistance whenever needed.

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 authority 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, 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 contention that his UOTHC discharge should be upgraded was carefully considered.

2.  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.

3.  Evidence of record shows the applicant was charged with being AWOL for over 600 days.  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 conduct does not meet acceptable standards for Army personnel.  Therefore, he is not entitled to an honorable or a general discharge.

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

5.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of making the applicant eligible for benefits.

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)                                         AR20100000376



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)