IN THE CASE OF:	  

		BOARD DATE:	    18 January 2011

		DOCKET NUMBER:  AR20100016357 


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, in effect, upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant makes no statements in support of his application.

3.  The applicant provides no additional evidence in support of his 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 30 July 1984 for a period of 
3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 88M (Motor Transport Operator).
3.  On 31 December 1987, court-martial charges were preferred against the applicant for :

* wrongfully failing to register a .38 caliber handgun
* wrongfully stowing a loaded firearm in a vehicle
* stealing a Pioneer cassette stereo of a value of about $199.99 and a Clarion equalizer of a value of about $250.00
* wrongfully receiving a cassette player of a value of about $199.99 and an equalizer of a value of about $250.00 then known to be stolen
* unlawfully carrying a concealed weapon, a loaded .38 caliber handgun

4.  The applicant voluntarily 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.  He acknowledged he understood the offense he was charged with and he was:

* making the request of his own free will
* guilty of the offense for which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished a UOTHC Discharge Certificate

5.  In addition, the applicant was advised he could expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge and he:

* would be deprived of many or all Army benefits
* could be ineligible for many or all Veterans Administration (VA) benefits
* could be deprived of his rights and benefits as a veteran under both Federal and State laws
* acknowledged he understood he could expect to encounter substantial prejudice in civilian life as a result of being issued a UOTHC discharge

6.  On 1 February 1988, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of a UOTHC Discharge Certificate.

7.  On 5 February 1988, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with a UOTHC discharge.  He had completed 3 years, 6 months, and 6 days of total active service.

8.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 30 October 1992, the ADRB reviewed his request and determined he was properly and equitably discharged and denied his request for an upgrade.

9.  References:

	a.  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.

	b.  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.  

	c.  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 voluntary request for separation 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.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life as a result of being issued a UOTHC discharge.

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case and the seriousness of the 

charges that were preferred against the applicant.  The records contain no evidence of procedural or other errors that would have jeopardized his rights. There is insufficient substantive evidence on which to base a discharge upgrade in this case.

3.  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)                                         AR20100016357



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ABCMR Record of Proceedings (cont)                                         AR20100016357



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