IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100020842 


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 discharge under honorable conditions.

2.  The applicant states he was told he would receive a general discharge under honorable conditions and his discharge under other than honorable conditions discharge is preventing him from joining the U.S. Army Reserve.

3.  He contends his record is in error because he never formally received an Article 15 and never appeared at a discharge hearing.  He had one incident of being drunk on duty for which he was disciplined.  His military counsel presented his record and he was never charged under the Uniform Code of Military Justice (UCMJ).  Further, he received an Army Good Conduct Medal, was advanced to pay grade E-4 in less than 2 years, attended various Soldier of the Month Boards, and was airborne qualified.  He was offered an early release after serving 3 1/2 years and he was told he would receive a general under honorable conditions discharge.

4.  The applicant 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 enlisted in the Regular Army on 3 December 1982.  He completed his initial training and was awarded military occupational specialty 19E (Armor Crewman).

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, on two separate occasions for:

* altering an official document (Individual Sick Slip) with intent to deceive and being absent from his place of duty
* having a blood alcohol level in excess of .05 percent

4.  On 6 February 1986, his commander placed the applicant on restriction.  The commander stated the applicant had a history of misconduct to include a company-grade Article 15 for being drunk on duty plus numerous verbal and written counselings as to his poor performance.  The applicant was a significant flight risk as he had been absent without leave (AWOL) from 22 January 1986 to 30 January 1986.  In addition, he violated an earlier restriction and returned to physical training formation drunk.  At that time he was administered a blood/
alcohol test which showed a content level of .18 percent.

5.  On 27 February 1986, he received a general officer letter of reprimand as a result of a second positive urinalysis for marijuana.

6.  On 19 April 1986, charges were preferred against him under the UCMJ for the following:

* violation of Article 86 for being AWOL from on or about 22 January 1986 to on or about 30 January 1986
* violation of Article 90 for willfully disobeying a lawful order
* violation of Article 92 for having a blood alcohol content of .18 milligrams per milliliter during duty hours
* violation of Article 112 for being drunk on duty during physical training

7.  He consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

8.  On 7 May 1986 subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive an under other than honorable conditions discharge which would deprive him of many or all 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.

9.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected to submit a statement in his behalf; however, the record does not contain any such statement.

10.  On 16 May 1986, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.

11.  On 23 May 1986, he was discharged accordingly.  He completed 3 years, 4 months, and 11 days of creditable active military service and accrued a total of 40 days of lost time due to being AWOL and confined.

12.  There is no evidence he applied to the Army Discharge Review Board for 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 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.

14.  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 evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

2.  His record of good service is greatly diminished by the numerous acts of misconduct, to include being drunk on duty, violating a lawful order, breaking restriction, and twice being AWOL.  Further, he has not provided any evidence or a sufficiently mitigating argument to warrant an upgrade of his discharge.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  In view of the foregoing, the applicant's request should be denied.

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 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)                                         AR20100020842



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ABCMR Record of Proceedings (cont)                                         AR20100020842



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