IN THE CASE OF:	  

		BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100009617 


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 a general discharge.

2.  The applicant states a Judge Advocate General (JAG) Corps officer told him the discharge would be under honorable conditions.  The JAG officer used the word “under” instead of “other than honorable.”  He had over 13 years of honorable service.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 (RA) on 10 September 1971 and he was discharged on 4 September 1974.

3.  The applicant enlisted in the RA again on 27 July 1976 and he was discharged on 27 April 1980 for the purpose of immediate reenlistment.  He reenlisted on 28 April 1980, 20 August 1982, and 27 May 1986.

4.  On 8 August 1986, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for three specifications of failing to obey a lawful order.

5.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was apprehended by civil authorities on 2 September 1986 for driving while intoxicated and he was confined pending court appearance.  He was released from civil confinement on 3 September 1986.

6.  On 1 December 1986, charges were preferred against the applicant for being absent without leave (AWOL) from 3 September 1986 through 23 November 1986.

7.  The applicant consulted with legal counsel and he voluntarily requested discharge for the good of the service 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.  In doing so, he acknowledged guilt to the offense charged, 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 under other than honorable conditions discharge was issued.  He also acknowledged that if his request for discharge was accepted, he could be discharged under conditions which were other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He did not submit statements in his own behalf.

8.  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 - in lieu of court-martial, with service characterized as under other than honorable conditions.

9.  Accordingly, the applicant was discharged from active duty on 15 January 1987 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, with an under other than honorable conditions discharge.  He had completed a total of 13 years, 2 months, and
22 days of active service.  He also had 83 days of time lost due to AWOL and civil confinement.
10.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

11.  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, an under other than honorable conditions discharge is normally considered appropriate.

12.  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.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 contends a JAG officer told him his discharge would be under honorable conditions.  However, the evidence of record does not substantiate his claim.  His service record shows he was advised of the effects of an under other than honorable conditions.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  Although the applicant contends he had over 13 years of honorable service, his service record shows he received one Article 15 and 83 days of time lost due to AWOL and civil confinement.

4.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for a general discharge as defined in Army Regulation 635-200 and appropriately characterized his service as under other than honorable conditions.

5.  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 requested relief.

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)                                         AR20100009617



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ABCMR Record of Proceedings (cont)                                         AR20100009617



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