IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100026765 


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 a general discharge (GD). 

2.  The applicant states it has been over 15 years since he was discharged and he regrets everything to this day.  He has a daughter in the Army and has had some life changing events in his life that have led him to a different career path he would like to take.  He had a violent break-in in July 2009 that resulted in him having to shoot and kill a teenage boy.  

3.  The applicant provides no supporting 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 on 30 March 1988, completed training, and was awarded the military occupational specialty 11H (Heavy Anti-armor Weapons Infantryman).

3.  During his occupational specialty training the applicant qualified for and was awarded Marksman Marksmanship Qualification Badge with Rifle, Handgrenade, and Missile Bars and the Sharpshooter Marksmanship Qualification Badge with Missile Bar. 

4.  The applicant was assigned to Headquarters and Headquarters Company, 1st Battalion, 48th Infantry Regiment in Germany from 19 July 1988 through 18 July 1991.

5.  The applicant was absent without leave (AWOL) from 24 December 1990 through 11 February 1992, 415 days.

6.  Upon his return to military control court-martial charges were preferred for his extended period of AWOL.

7.  On 20 February 1992, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished a UOTHC certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC.  

8.  The applicant requested placement in an excess leave status pending completion of his request for discharge.  He agreed to be discharged in absentia. The request was approved and he was placed in an excess leave status from 4 March 1992 through 9 September 1992, 169 days.

9.  On 21 July 1992, the court-martial authority approved the discharge request and directed the applicant be reduced to the lowest enlisted grade and discharged with a UOTHC. 

10.  The applicant was discharged on 9 September 1992 with a UOTHC.  His DD Form 214 shows 3 years, 3 months and 22 days of creditable service, 169 days in excess leave, with 415 day of lost time.

11.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

12.  Army Regulation 635-200 sets forth the purpose and policies for enlisted personnel separations.  It provides the following at: 

	a.  Paragraph 3-7b state that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;  

	b.  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier;  

	c.  Paragraph 3-7c(7) specifically addresses issuance of an UOTHC characterization for discharges issued under the provisions of chapter 10 of that regulation; and 

	d.  Chapter 10 of the regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states it has been over 15 years since he was discharged and he regrets everything to this day.  He has a daughter in the Army and has had some life changing events that have led him to a different career path he would like to take.  

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant has not provided and the record does not contain any indication that his creditable service was so exceptionally meritorious as to outweigh his extended period of AWOL.  

4.  Further, the applicant has not provided any evidence that his post service conduct has been anything other than what is expected of a normal citizen. 

5.  Therefore, there is insufficient evidence to warrant an upgrade of his character of discharge.

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)                                         AR20100026765





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ABCMR Record of Proceedings (cont)                                         AR20100026765



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