IN THE CASE OF:	  

		BOARD DATE:	  6 January 2011

		DOCKET NUMBER:  AR20100017755 


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 his characterization of service be changed from under other than honorable conditions (UOTHC) to general under honorable conditions or honorable.  

2.  He believes his overall military service record was not taken into consideration regarding his character of service at the time of his discharge.  

3.  He provides the following documents in support of his application:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Marriage license
* DuPont Achievement Award
* Certificate for completion of the “ICI/Fiberite’s” Supervisory Interpersonal Skills Course
* National Chemsearch, Certificate of Accomplishment
* National Executive Housekeepers Association, Incorporated, Certificate of Completion in Restroom Care and Carpet Care
* Environmental Compliance Group, Incorporated, AHERA Asbestos Awareness Training Course Certificate of Completion
* Certificate of Completion of the District 12-Hour “Basic” Computer Training 
* North Central Texas Workforce, Certificate of Completion of Interviewing Skills 4-Hour Workshop
* Light Truck Operators License


* Clark Street Christian Church, Certificate of Dedication
* Two character references
* Resume

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 9 August 1977 after completing prior active and inactive service.  

3.  On 25 August 1977, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty at the proper time.

4.  He was convicted by a special court-martial on 25 July 1978 of forgery.  He was sentenced to reduction to the grade of private, E-1, confinement at hard labor for 3 months, forfeiture of $260.00 pay for 3 months, and to be discharged with a bad conduct discharge.  The portion of the sentence adjudging a bad conduct discharge was suspended for 7 months unless the suspension was sooner vacated.  

5.  His service record contains a DA Form 4187 (Personnel Action), dated 22 September 1980, which shows his duty status changed from present for duty to confined by civil authorities effective 20 September 1980.  His service record also contains a DA Form 4187, dated 7 October 1980, which shows his duty status changed from confined by civil authorities to present for duty effective 6 October 1980.  This period of lost time is recorded on his DD Form 214.  

6.  Charges were preferred against him on 3 November 1980 for being absent without leave (AWOL) from 24 August 1979 to 1 September 1980.  


7.  On 6 November 1980, 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.  In doing so, he admitted guilt to the offense charged and acknowledged 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 UOTHC discharge was issued.  He did not submit statements in his own behalf.  

8.  The separation authority approved his 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 issuance of a UOTHC discharge.

9.  He was discharged on 12 November 1980 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  He completed 1 year, 11 months, and 25 days of active military service with 443 days of lost time.

10.  He provided two character references from a teacher at Carver Elementary School and a minister at Clark Street Christian Church who described his work ethics, leadership qualities, and his personal qualities as a good and 
well-mannered person.

11.  He also provided several certificates which show he completed various courses after he was discharged.  

12.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  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 discharge UOTHC is normally considered appropriate.

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his overall military service record was not taken into consideration regarding his character of service.  However, his service record shows he received one Article 15, one conviction by a special court-martial, and confinement by civil authorities during the period under review.  

2.  Although he may now feel that his UOTHC discharge should be upgraded to general under honorable conditions, his service does not meet the standards of acceptable conduct and performance of duty to warrant a general discharge.  

3.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.  

4.  His post-service conduct and accomplishments are acknowledged.  However, these issues are not sufficiently mitigating to warrant relief in this case.

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 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)                                         AR20100017755





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ABCMR Record of Proceedings (cont)                                         AR20100017755



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