IN THE CASE OF:	  

		BOARD DATE:	    17 May 2011

		DOCKET NUMBER:  AR20100027658 


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) under honorable conditions.

2.  The applicant states he made some bad decisions after returning from Operation Desert Storm, being a young man not able to adapt.  He states he has learned a great deal and is now an upstanding member of his community.

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 15 August 1990.  He was trained in and awarded military occupational specialty 52D (Power Generator Equipment Operator) 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 Southwest Asia Service Medal with two bronze service stars, National Defense Service Medal, Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, First Class Qualification Badge with Hand Grenade Bar, and Kuwait Liberation Medal during his active duty tenure.  His record documents no acts of valor or significant individual achievement.  

4.  The record shows the applicant accrued 247 days of lost time during three separate periods of being absent without leave (AWOL) between 11 June 1991 and 2 August 1992.

5.  On 21 January 1992, the applicant was AWOL from his unit at Fort Gillem, Georgia.  He remained away for 195 days until returning to military control at the Personnel Control Facility, Fort Knox, Kentucky, on 3 August 1992.

6.  On 6 August 1992, 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 21 January through on or about 3 August 1992.

7.  On 6 August 1992, 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 chapter 10, Army Regulation 635-200 (Personnel Separations).

8.  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 being deprived of many or all Army benefits, 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.

9.  On 27 August 1992, the separation authority approved the applicant's request for discharge and directed that he be issued a UOTHC discharge.  On 16 September 1992, the applicant was discharged accordingly.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 4 months, and 28 days of creditable active military service and accrued 247 days of lost time due to being AWOL.

10.  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.

11.  Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention his discharge should be upgraded to a GD because he was a young man at the time and could not adapt while he is now an upstanding member of his community has been carefully considered.  However, while his post-service conduct is noteworthy, it alone is not sufficiently mitigating to support granting the requested relief.

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 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 valor and did not support the issuance of a GD by the separation authority at the time of his discharge and it does not support an upgrade to a GD at this time.  As a result, his overall record of service is not sufficiently meritorious to support an upgrade of his 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 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)                                         AR20100027658



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ABCMR Record of Proceedings (cont)                                         AR20100027658



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