IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100027977 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  He states that he did not understand the type of discharge he was receiving.  He is trying to change something he did wrong when he was young.  

3.  He provides:

* Two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Three character reference letters
* Completed DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)

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 military records show he enlisted in the Regular Army (RA) on 9 June 1982.  On the date of his enlistment in the RA, he was 18 years and 3 months of age.  He completed training and he was awarded military occupational specialty 19E (M48-M60 Armor Crewman).  

3.  A DD Form 458 (Charge Sheet), dated 25 March 1994, shows he was charged with one specification of absenting himself from his organization from 26 October 1984 to 22 March 1994.

4.  On 28 March 1994, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged with UOTHC and the results of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  He waived his rights and elected not to submit a statement in his own behalf.  He further acknowledged he knowingly, willingly, and voluntarily was absent without leave (AWOL).

5.  On 13 April 1994, the applicant's unit commander recommended approval of the applicant's request.  The unit commander stated that the applicant had become disillusioned with the military and his retention was not in the best interest of the Army.  

6.  On 27 April 1994, the appropriate separation authority approved the applicant’s request and directed the issuance of a UOTHC discharge and reduction to pay grade E-1.

7.  Accordingly, he was discharged in pay grade E-1 on 13 May 1994, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  His service was characterized as UOTHC.  He was credited with completing 2 years, 6 months, and 8 days of active service and lost time from 26 October 1984 to 22 March 1994.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  He provided three character reference letters wherein the individuals stated their support of his request for an upgrade of his discharge.  The individuals also attested to the applicant being a model civilian and devoted husband and father.  

10.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation specified a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could only be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the RA on 9 June 1982 and served without incident until October 1984.  He departed AWOL on 26 October 1984 and he returned to military control on 22 March 1994.  Upon his return from AWOL, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  He also acknowledged he could be discharged UOTHC.

2.  His contention that his youth made him do the wrong thing and impacted his ability to serve successfully is without merit.  He was 18 years and 3 months of age when he enlisted in the RA.  He was 20 years and 8 months of age when he went AWOL and 30 years of age when he was returned to military control.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  His unit commander stated the applicant had become disillusioned with the military and his retention was not in the best interest of the Army.  

3.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and he also has not provided evidence sufficient to mitigate the character of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  His misconduct diminished the quality of his service below that meriting a general or an honorable discharge.

4.  Without evidence, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  Therefore, he was properly discharged in accordance with pertinent regulations with due process.

5.  In view of the foregoing, there is no basis for granting him the requested relief.

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)                                         AR20100027977





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ABCMR Record of Proceedings (cont)                                         AR20100027977



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