IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100012561 


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

2.  The applicant states he served a total of 3 years, 5 months, and 21 days.  He states that his father passed away in late 1985 and his mother was ill.  He attempted to get a compassionate reassignment to be closer to home.  His request was denied and he started acting out.  He was young, immature, and very depressed about the situation.  He believes he would have faithfully finished his enlistment if he would have been accommodated.  He adds that given his more than 3 years of meritorious service an injustice occurred.  The severity of his discharge affects him and his family.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 27 July 1982.  He completed initial entry training and was awarded military occupational specialty 12B (Combat Engineer).

3.  On 13 December 1982, he was convicted by a general court-martial of unlawfully striking another Soldier in the head with the heavy end of a pool cue inflicting grievous bodily harm.

4.  He accepted nonjudicial punishment on 31 October 1985 for wrongful use of marijuana and two instances of failing to go at the time prescribed to his appointed place of duty.

5.  On 26 November 1985, court-martial charges were preferred against him for the following offenses:

	a.  operating a vehicle while drunk and causing said vehicle to injure another person;

	b.  operating a vehicle in a reckless manner by traveling at an excessive rate of speed and colliding with another vehicle causing said vehicle to injure another person;

	c.  three specifications of failing to go at the time prescribed to his appointed place of duty; and

	d.  disobeying a lawful command from his superior commissioned officer.

6.  On 10 December 1985, he 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 due to charges being preferred against him under the Uniform Code of Military Justice which authorized the imposition of a bad conduct or dishonorable discharge.

7.  He acknowledged in his request that he understood he could be issued a UOTHC discharge and that he could be ineligible for many or all benefits administered by the department of Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a UOTHC discharge.  He elected not to submit a statement in his own behalf.

8.  On 19 December 1985, the separation authority approved his request for discharge and directed that he be reduced to the lowest enlisted grade and issued an UOTHC Discharge Certificate.  On 17 January 1986, he was discharged accordingly.  He had completed 3 years, 5 months, and 21 days of active military service.

9.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge 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.  A UOTHC discharge is normally considered appropriate.

11.  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.

12.  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 discharge should be upgraded because he was young, immature, and had completed more than 3 years of meritorious service has been carefully considered.


2.  The available evidence shows he completed initial entry training.  This shows he was mature enough to satisfactorily serve.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.

3.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

4.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

5.  His record of indiscipline includes nonjudicial punishment for wrongful use of marijuana and a prior court-martial conviction for an offense committed prior to the death of his father.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge his overall record of service did not support the issuance of an honorable or a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

6.  In view of the foregoing, 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)                                         AR20100012561



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ABCMR Record of Proceedings (cont)                                         AR20100012561



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