BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100009437 


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 upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.  In the alternative, he requests a general discharge.  He also requests correction of his rank/grade to sergeant (SGT)/E-5.

2.  The applicant states that it has been 19 1/2 years since his discharge and it is very difficult for him to support himself and his family.  Other than the event which led to his discharge, he was an outstanding Soldier and earned a number of awards.

3.  The applicant does not provide any additional documents.

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 military records show that he enlisted in the Regular Army on 25 September 1978, he was awarded military occupational specialty (MOS) 71L (administrative specialist), he served two tours in Germany, and he was promoted to the rank/grade of SGT/E-5.

3.  On 21 May 1990, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  This was based on preferral of court-martial charges for wrongfully using cocaine.

4.  Included with his request for discharge was his request that he be issued a general discharge.  In that request he stated that trying to get employment with an UOTHC discharge would be very difficult and it would be easier to find employment with a general discharge,   He then attached copies of his evaluation reports, letters of commendation, and a certificate of achievement.

5.  The separation authority, a major general, approved the applicant's request for discharge and directed issuance of a UOTHC Discharge Certificate and immediate reduction to the lowest enlisted grade.

6.  Accordingly, on 12 June 1990, the applicant was given a UOTHC discharge under the provisions of Army Regulation 635-200, chapter 10.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows that he had been awarded the Army Service Ribbon, Overseas Service Ribbon (2nd Award), Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal (2nd Award), NCO Professional Development Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

8.  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 UOTHC discharge is normally considered appropriate.

9.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, established policy for enlisted personnel management.  Paragraph
6-11 directed reduction to the lowest enlisted grade of individuals who were discharged under other than honorable conditions.
DISCUSSION AND CONCLUSIONS:

1.  The applicant requested discharge in lieu of court-martial when he was charged with wrongfully using cocaine.

2.  At the time the applicant had over 11 years of active service and he was serving in pay grade E-5.

3.  The applicant requested a general discharge when he submitted his request for voluntary discharge and he provided the same reasons he presents to this Board.  The approving authority decided that his offense was serious enough to warrant issuing a UOTHC discharge after reviewing the applicant's request for leniency.  

4.  The approving authority's decision is justified given the applicant's pay grade and length of service, and he provides insufficient evidence/argument to warrant this Board upgrading his discharge.

5.  While the applicant was awarded several awards, he was never awarded any decoration for valor or exceptional achievement.

6.  While it is unfortunate the applicant is experiencing employment problems, it is not sufficient to warrant upgrading a properly-issued discharge.  Additionally, the passage of time is also not a basis for upgrading a discharge.

7.  Since the applicant was given a UOTHC discharge, he was required to be reduced to the lowest enlisted grade of private (PV1)/E-1.  Since there is no basis for upgrading his discharge, there is no basis for restoring him to pay grade E-5.

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)                                         AR20100009437



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont)                                         A