IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100030523 


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 discharge under other than honorable conditions (UOTHC) to a general discharge.

2.  The applicant states that he was a very good Soldier during the time he was on active duty.  He actually tried to reenlist during Desert Storm.  He ask the Board to consider the following:
* 14 weeks of Basic Combat Training and Advanced Individual Training (AIT) 
* he served in an honor platoon
* he is now more responsible
* he was very young and far away from home
* he was involved in Reforger in which his unit went to Germany
* he was Calvary Scout
* he was very proud to serve his country 
 
3.  The applicant provides the following:
* a copy of a Certificate of Completion for Technician Type Universal
* a copy of a Certificate from the Common Wealth of Virginia (General Educational Development)
* a copy of his Certificate of Release or discharge From Active Duty (DD Form 214)
* a copy of his college transcript



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 personnel records show he enlisted in the Regular Army on 28 December 1983 at 18 years of age.  He completed basic combat and advanced individual training and he was awarded MOS 19D (Cavalry Scout).  The highest rank/grade he attained was pay grade E-3.

3.  On 15 November 1985, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 11 July 1985 until on or about 7 November 1985.

4.  On the same day, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He acknowledged he understood he could receive an undesirable discharge and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.  In addition, the applicant was advised he might expect to encounter substantial prejudice in civilian life if he was issued an UOTHC Discharge Certificate and he might be deprived of many or all Army benefits.

5.  On 6 December 1985, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that he be issued a Discharge Certificate UOTHC. 

6.  On 30 January 1986, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with issuance of an UOTHC Discharge Certificate.  He completed 1 year, 9 months and 7 days of total active service with 96 days of lost time due to AWOL.

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

9.  Army Regulation 635-200, paragraph 3-7b, states 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 contentions of the applicant and his supporting documents were carefully considered and found to be insufficient in merit.  There is no evidence in his military record and the applicant did not provide any evidence to support his allegations.

2.  Records show the applicant enlisted at age 18 and he was 20 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

3.  The applicant was discharged for the good of service and in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.

4.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights. The quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Therefore, there is no basis for granting the applicant's request for an upgrade to 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)                                         AR20100030523





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ABCMR Record of Proceedings (cont)                                         AR20100030523



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