IN THE CASE OF:	  

		BOARD DATE:	  3 March 2011

		DOCKET NUMBER:  AR20100019954 


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 upgrade of his discharge under other than honorable conditions (UOTHC) and restoration to pay grade E-2.

2.  The applicant states that the discharge does not reflect the time he served or his character as a person.  Pressure and worries from home added to peer pressure and led to alcohol and drug abuse.  He was addicted and sent to Moonlake; later the drugs led to absence without leave (AWOL) and to prison.  The discharge does not show his last rank or any of his foreign assignments.  He was offered only 6 months and a dishonorable discharge.  He asked for a general discharge, but accepted the current discharge to avoid prison.  He is asking for an upgrade because he did serve more than 180 days.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and DA Form 2-1 (Personnel Qualification Record Par II).

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 12  August 1980.  He completed training as an infantryman and was advanced to pay grade E-2 on 26 June 1981.

3.  Item 35 (Record of Assignments) of the DA Form 2-1, Part II does not show any foreign assignments.

4.  The applicant was AWOL on 14 October 1981 and in the hands of civil authorities until 20 April 1987.  Charges were preferred for that offense and for AWOL from 22 April to 22 July 1987. 

5.  The applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated that he understood the elements or the charges against him and admitted that he was guilty of at least one offense for which a punitive discharge was authorized.  He also acknowledged that he would receive a UOTHC discharge and that he understood that he would be deprived of many or all Army benefits and that he might be ineligible for veterans benefits administered by the Veterans Aministration (VA).  He stated that he understood that he could expect to encounter substantial prejudice in civilian life because of the discharge.  He indicated that he had received legal advice but that the request had been made voluntarily and that it reflected his own free will.

6.  The chain of command recommended approval of the applicant's request.

7.  The separation authority approved the applicant's request and directed that he be issued a UOTHC discharge.  On 28 August 1987, the applicant was so separated.  He had 1 year, 3 months, and 10 days of creditable service and over 5 1/2 years of lost time.

8.  There is no indication that the applicant applied to the Army Discharge Review Board.



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

   a.  Chapter 10 of that regulation provides 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 under other than honorable conditions is normally considered appropriate.

   b.  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.

10.  Army Regulation 600-200 [as then in effect] provided in section IV of chapter 6 that, upon determination that a Soldier is to be separated UOTHC, the separation authority was to direct reduction to the lowest enlisted grade. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claimed drug addiction did not keep the civilian authorities from holding him responsible for his behavior and it does nothing to excuse his AWOL's. 

2.  The available records do not show any foreign assignments.

3.  Once the separation authority determined that a UOTHC discharge was appropriate, the applicant's reduction to pay grade E-1 was required by regulation.

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

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)                                         AR20100019954





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ABCMR Record of Proceedings (cont)                                         AR20100019954



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