IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100023351 


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 under other than honorable conditions (UOTHC) be upgraded to an honorable discharge (HD).

2.  The applicant states he served his country honorably for most of his adult life and requests his entire record of service be considered.  He claims he is in need of a pension and medical benefits.

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 had prior service in the Regular Army from July 1987 to July 1990 and in the Army National Guard from July 1990 until he again enlisted in the Regular Army on 23 November 1993.  It further shows he held and served in military occupational specialty 63T (Bradley Fighting Vehicle System Mechanic), and that sergeant/E-5 is the highest rank he attained while serving on active duty.  He reenlisted  on 21 March 1996 and again on 18 September 1997.

3.  The record shows that during his active duty tenure, the applicant earned the following awards:

* Army Achievement Medal (3rd Award)
* Army Good Conduct Medal (3rd Award)
* National Defense Service Medal
* Noncommissioned Officer Professional Development Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar and Hand Grenade Bars
* Driver and Mechanic Badge with Driver and Mechanic Bars

4.  On 16 November 1999, the applicant was AWOL from his unit in Germany.  He remained away for 276 days until returning to military control at Fort Knox, Kentucky, on 22 August 2000.

5.  On 30 August 2000, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 16 November 1999 through on or about 22 August 2000.  The applicant consulted with legal counsel and he was advised of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  He was also informed of the possible effects of a UOTHC discharge and of the rights and procedures available to him.  After receiving legal counsel, he 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 trial by court-martial.

6.  The applicant acknowledged that by requesting discharge he was admitting he was guilty of the charge against him or of a lesser-included offense therein contained that also authorized the imposition of a punitive discharge.  He also acknowledged his understanding that if his request for discharge were approved, he could receive a UOTHC discharge.  He further stated he understood that receipt of a UOTHC discharge could result in being deprived of many or all Army 


benefits, his possible ineligibility for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

7.  On 21 November 2001, the separation authority approved the applicant's request for discharge and directed he receive a UOTHC discharge.  On 11 December 2001, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he completed 7 years, 9 months, and 9 days of creditable active military service and accrued 276 days of lost time due to AWOL during the period covered by the DD Form 214.  Item 18 (Remarks) of his DD Form 214 shows his previous honorable active service from 23 November 1993 through 17 September 1997.

9.  On 18 December 2002 after carefully considering the applicant's entire military record and the issues he presented, the Army Discharge Review Board (ADRB) determined his discharge was proper and equitable and voted to deny his request for an upgrade of his discharge.

10.  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 HD or a general discharge (GD) is authorized, a discharge UOTHC is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 HD.  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 contention that his discharge should be upgraded based on his overall record of service because he needs a pension and medical benefits has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The UOTHC discharge received by the applicant was normal and appropriate under the regulatory guidance.  Although the majority of his service prior to the incident was honorable and such service from 23 November 1993 through        17 September 1997 is reflected on his last DD Form 214 (and presumably he has a DD Form 214 from his initial enlistment showing that service as honorable), his overall record of service is not sufficiently meritorious to mitigate the misconduct that led to his discharge.  His record did not support the issuance of an HD or a GD by the separation authority at the time of his discharge and does not support an upgrade to an HD or a GD at this time.

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)                                         AR20100023351



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ABCMR Record of Proceedings (cont)                                         AR20100023351



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