IN THE CASE OF:	  

		BOARD DATE:	    19 May 2011

		DOCKET NUMBER:  AR20100027456 


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.  

2.  He states:

* he was having family problems
* his sister wrecked their father’s car and killed their neighbor at age 16
* he was young and did not know what to do

3.  He provides no additional documents.  

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 was born on 27 September 1971.  He enlisted in the Regular Army on 26 May 1989 at age 17.  

3.  On 27 October 1989, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for:

* committing an indecent assault upon a female private (2 specifications)
* violating a general regulation (2 specifications)
* failing to obey a lawful order
* wrongfully consuming an alcoholic beverage under the age of 21
* being drunk and disorderly
* being disrespectful in deportment towards his superior noncommissioned officer

4.  On 19 July 1990, charges were preferred against him for being absent without leave (AWOL) from 7 February to 5 July 1990.  

5.  He consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if a UOTHC discharge was issued.  He did not submit statements in his own behalf.  

6.  The separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of court-martial with a UOTHC discharge.

7.  On 4 October 1990, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UOTHC discharge.  He completed 11 months and 11 days of creditable active service and he had 148 days of lost time.

8.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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 UOTHC discharge is normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, provides 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.

11.  Army Regulation 635-200, paragraph 3-7b provides 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.  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 statements regarding his personal family problems were acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL offense) which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  He contends he was young and didn’t know what to do.  However, age is not sufficiently mitigating to warrant relief in this case.  

3.  The applicant's voluntary request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.  

4.  His service record shows he received one Article 15 and was charged with being AWOL 148 days.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20100027456



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ABCMR Record of Proceedings (cont)                                         AR20100027456



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