IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20110000169 


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).

2.  He states it has been over 15 years since his discharge.  He made a few bad choices that ended his military career.  He has regretted those choices for the last 15-plus years.  He requests the ability to better his life with an upgrade of his discharge.  He asks for mercy and forgiveness from the Board, the Army, and the Secretary of the Army.

3.  He provides no additional evidence.

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 in pay grade E-2 on 16 November 1992 with prior Army National Guard enlisted service. 
He completed training and he was awarded military occupational specialty 94B (Food Service Specialist).  He was advanced to pay grade E-3 on 1 February 1993.

3.  A DA Form 4187 (Personnel Action), dated 27 December 1993, shows he was reduced from pay grade E-2 to pay grade E-1 on 27 December 1993 as a result of a locally-filed reduction.

4.  A DD Form 458 (Charge Sheet), dated 23 February 1994, shows he was charged with one specification of rape on or about 7 January 1994.

5.  On 20 April 1994 after consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged UOTHC, the results of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  He further acknowledged that under no circumstances did he desire further rehabilitation and had no desire to perform further military service.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 25 and 26 April 1994, respectively, the applicant's unit and intermediate and senior intermediate commanders recommended approval of the applicant's request and the issuance of a UOTHC discharge.

7.  On 29 April 1994, the appropriate separation authority approved the applicant's request and directed the issuance of a UOTHC discharge and his reduction to pay grade E-1.

8.  Accordingly, he was discharged for the good of the service in lieu of trial by court-martial in pay grade E-1 on 9 May 1994 under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as UOTHC.  He was credited with completing 1 year, 5 months, and 22 days of active service during the period under review and lost time from 10 to 11 August 1993.

9.  On 25 November 1996 and 23 March 2001, the Army Discharge Review Board denied his requests for an upgrade of his discharge.

10.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 were preferred and must include the individual's admission of guilt.  Although an honorable or a general discharge was authorized, a discharge UOTHC was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is a separation with honor.  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 inappropriate.

12.  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 only be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with one specification of rape on 23 February 1994.  On 20 April 1994 after consulting with counsel, 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 contentions were carefully considered; however, the evidence shows he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  In his request, he acknowledged he understood he could be furnished a UOTHC discharge.  He stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.

3.  He provides no evidence or a convincing argument to show his discharge should be upgraded or 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 an honorable or a general 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 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)                                         AR20110000169



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ABCMR Record of Proceedings (cont)                                         AR20110000169



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