IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100024059 


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

2.  The applicant states his wife at the time was cheating on him which caused emotional distress.  He states he spent a lot of time in the field which eventually drove his wife into the arms of another man.  He states the embarrassment caused by this situation was intolerable and caused him to run away.  He states he is sorry for his mistake but it would not have happened if it were not for the time he spent away from home serving his country.

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's record shows he enlisted in the Regular Army on 13 May 1987 and was trained in and awarded military occupational specialty 54B (Nuclear, Biological and Chemical Specialist).

3.  The record shows the applicant was promoted to specialist/E-4 on 1 June 1991 and this is the highest rank/grade he attained while serving on active duty.  The record further shows he was reduced to private/E-1 for cause on 4 April 1990.  His record documents no overseas service and no acts of valor or significant achievement.

4.  On 7 November 1989 while serving at Fort Stewart, Georgia, the applicant was absent without leave (AWOL) from his unit.  He remained away for 12 days until returning to military control on 19 November 1989.  He again was AWOL from his unit on 22 November 1989 and was dropped from the rolls of his organization.  He remained absent for 27 days until being returned to military control on 18 December 1989.

5.  On 25 January 1990, 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 22 November through 18 December 1989.

6.  On 25 January 1990, the applicant consulted with legal counsel and 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, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

7.  In his request for discharge, 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 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.

8.  On 4 April 1990, the separation authority approved the applicant's request for discharge and directed the applicant be issued a UOTHC discharge.  On 17 April 1990, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 2 years, 9 months, and 11 days of creditable active military service.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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 because his discharge was the result of emotional distress caused by trouble in his marriage resulting from duty has been carefully considered.  However, this factor does not sufficiently mitigate the misconduct that resulted in his discharge and does not support an upgrade of his discharge.

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.  His record documents no acts of valor or significant achievement that would have supported the issuance of an HD or a GD by the separation authority at the time of his discharge or that would support an upgrade to an HD or a GD at this time.  As a result, his overall record of service is not sufficiently meritorious to support granting the requested relief.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

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)                                         AR20100024059



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ABCMR Record of Proceedings (cont)                                         AR20100024059



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