IN THE CASE OF:	  

		BOARD DATE:	    19 April 2011

		DOCKET NUMBER:  AR20100024083


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 that his discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

2.  The applicant states it has been 18 years since he was discharged and he would like to have his discharge upgraded.

3.  The applicant provides no additional 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 (RA) on 1 February 1984.  He successfully completed the training requirements and he was awarded military occupational specialty 76P (Materiel Control and Accounting Specialist).  He was honorably discharged for immediate reenlistment on 26 February 1988 and he reenlisted in the RA 27 February 1988.

3.  On 23 January 1991, the applicant was notified that charges were pending against him for reckless driving and assault with a means to produce death or grievous bodily harm with a moving vehicle.  He acknowledged receipt of the notification, consulted with counsel, and submitted a request for discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service in lieu of trial by court-martial.  In his request for discharge, he acknowledged he understood the following:

* if his request for discharge was accepted, he could be discharged under other than honorable conditions 
* as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Department of Veterans Affairs 
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

4.  On 15 February 1991, the appropriate authority approved the request for discharge.  On 25 February 1991, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions.  He had completed 7 years and 25 days of net active service.

5.  On 2 December 1992, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  His request was denied.

6.  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.

7.  Army Regulation 635-200 provides at:

	a.  paragraph 3-7a that an honorable discharge 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; and

	b.  paragraph 3-7b 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted.  There is no evidence in the available record, nor has he submitted any evidence, showing the action taken by the Army in his case was incorrect.

2.  The applicant’s records show charges were pending against him for reckless driving and assault with means to produce death or grievous bodily harm with a moving vehicle.  He submitted a request for discharge for the good of the service in lieu of trial by court-martial and the appropriate authority approved his request.

3.  The fact that 18 years have passed since he was discharged is an insufficient basis for upgrading 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 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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100024083



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