IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100015839 


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 discharge to a general or an honorable discharge.

2.  He states the conditions surrounding the incident were a one-time occurrence in which alcohol played a role and caused a physical confrontation with another individual resulting in damage to the other individual's vehicle.  He had never been in trouble before or since and he is currently an upstanding member of his community.  He was young and did not realize what taking this discharge meant for him then or now.  He should not have taken the first discharge offered to him and pursued at least a general discharge.  His time in the service was served proudly and honorably and that was scarred by that regretful situation.

3.  He provides no additional evidence.

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 he enlisted in the Regular Army on
29 November 1990, for 6 years.  He completed training and he was awarded military occupational specialty 68N (Avionic Mechanic).  He served in Hawaii from 17 October 1991 through 17 April 1994.  He was advanced to pay grade
E-4 on 29 January 1993.

3.  The specific facts and circumstances surrounding his discharge are not present in the available records.  However, his record contains an authenticated DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged in pay grade E-1 on 19 April 1994, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions. He was credited with 3 years, 4 months, and 21 days of net active service this period with no time lost.

4.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

5.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation specified a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

6.  Army Regulation 635-200, paragraph 3-7a, specified an honorable discharge was separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

7.  Army Regulation 635-200, paragraph 3-7b, specified a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could only be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and he also has not provided evidence sufficient to mitigate the character of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  It appears his misconduct diminished the quality of his service below that meriting a general or an honorable discharge.

3.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Without evidence, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  Therefore, he was properly discharged in accordance with pertinent regulations with due process.

5. 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)                                         AR20100015839



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ABCMR Record of Proceedings (cont)                                         AR20100015839



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