IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100027152 


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 he was unjustly discharged for one incident that took place during two hours of his life.  

3.  The applicant provides a self-authored letter 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 and entered active duty on 5 December 1984.  He was trained in and awarded military occupational specialty (MOS) 24N (Chaparral System Mechanic) and private first class/E-3 is the highest rank he attained while serving on active duty.

3.  The applicant's record shows he earned the Army Service Ribbon, Overseas Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of significant achievement or valor.

4.  The record shows a court-martial charge were preferred against the applicant for violating Article 112a of the Uniform Code of Military Justice (UCMJ) by committing the offense of wrongfully possessing lysergic acid diethylamide.

5.  On 27 March 1986, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-marital and the maximum permissible punishment under the UCMJ, of the possible effects of a UOTHC discharge, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed 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 his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

7.  On 14 April 1986, the applicant’s battery (unit) commander recommended approval of the applicant’s discharge request and that he receive a general, under honorable conditions discharge (GD); and on 15 April 1986, the troop (battalion) commander recommended approval of the applicant’s request for discharge but recommended he received an UOTHC discharge due to the severity of the offense.  

8.  The Staff Judge Advocate in preparing the separation packet on the applicant for the separation authority recommended leniency by approving the applicant’s request for discharge based on the applicant’s overall record of service; however, he recommended an UOTHC discharge based on the severity of the charge against the applicant.  

9.  On 16 April 1986, the separation authority approved the applicant’s request for discharge and directed he receive an UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 6 May 1986, the applicant was discharged accordingly. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 5 months, and 2 days of active military service.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides for members who have committed an offense or offenses for which the authorized punishment includes a punitive discharge to submit a request for discharge for the good of the service in lieu of trial by court-martial anytime after charges have been preferred.  A UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a GD if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

11.  Army Regulation 635-200 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.  It also 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that 06649187his discharge should be upgraded to an HD because it was unjust has been carefully considered.  However, the evidence confirms the applicant requested discharge in order to avoid a court-martial that could have resulted in his receiving a punitive discharge.  It further shows that although his unit commander recommended a GD, both the battalion level commander and SJA although recommending leniency in the form of approval of the applicant’s discharge request, both recommended the applicant received an UOTHC discharge based on the severity of the offense committed by the applicant.  


2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge 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 significant achievement or valor and did not support the issuance of an HD or a GD by the separation authority at the time of his discharge and it does not support an upgrade to an HD or 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 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)                                         AR20100027152



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ABCMR Record of Proceedings (cont)                                         AR20100027152



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