IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100019233 


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 discharge be upgraded to honorable.

2.  The applicant states he was told he had "honorable conditions" and that he had served well.  He was put in for medals for his work as a driver in the "NTC Training".

3.  The applicant provides no supporting documentation.

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 13 March 1985, completed training, and was awarded the military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman). 
3.  On 3 April 1986 the applicant went AWOL (absent without leave) and remained absent until 14 May 2006 (41 days).

4.  On 21 May 1986, after consulting with counsel and being advised of his rights and options, the applicant submitted a request for discharge 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, for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that if the request was accepted, he could receive a discharge under other than honorable conditions and the effects of this type of discharge.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions discharge (UOTHC).

5.  The applicant requested and was placed on excess leave on 21 May 1986 pending completion of his separation request.

6.  On 3 November 1986, the separation authority approved the discharge and directed the issuance of an UOTHC.

7.  On 16 December 1986, the applicant was discharged with a UOTHC.  He had 1 year, 7 months, and 23 days of service with 209 days of excess leave and 41 days of time lost.

8.  The available records contain no indication that the applicant was recommended for or awarded any personal awards or commendations.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for review of his characterization of service.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty; 

	b.  a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;

	c.  an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of an UOTHC for discharges issued under the provisions of chapter 10 of this regulation; and

	d.  Chapter 10 provides that a member who 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UOTHC certificate would normally be furnished an individual who was discharged for the good of the Service. 

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was told he had "honorable conditions" and that he had served well.  He was put in for medals for his work as a driver in the "NTC Training".

2.  There is no indication that was considered for any characterization of service other than other than honorable conditions. 

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

4.  The applicant has provided insufficient evidence to warrant an upgrade of his discharge to either honorable or general under honorable characterization of service.

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)                                         AR20100019233





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ABCMR Record of Proceedings (cont)                                         AR20100019233



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