IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20110001824 


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 discharge (UOTHC) be upgraded to an honorable discharge (HD).  

2.  The applicant states he would like have a good service record.  During the majority of his service he performed his duties well.  He admits to having problems but claims he has since turned his life around.  

3.  The applicant provides psychiatric counseling and evaluation documents and third-party character references from family, landlord, clergy, and friends.  

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 (RA) on 
28 March 1978.  He was trained in and awarded military occupational specialty (MOS) 27G (Chaparral/Redeye Repairer).  It further shows he reenlisted in the RA for 6 years on 19 September 1980.  

3.  The applicant’s record shows he earned the Army Service Ribbon, Overseas Service Ribbon and Sharpshooter Marksmanship Qualification Badge with Rifle Bar during his tenure on active duty.  His record documents no acts of valor or significant achievement.  

4.  The applicant’s disciplinary history includes a 27 January 1981 summary court-martial (SCM) conviction for violating Article 128 of the Uniform Code of Military Justice (UCMJ) by committing an assault on or about 15 December 1980.  

5.  On 11 February 1983, the following five court-martial charges were preferred against the applicant for the following offenses:

* Behaving with disrespect 
* Disobeying lawful commands of a captain (2) 
* Disobeying lawful orders given by noncommissioned officers (NCO) (5)
* Disrespectful in language towards NCOs (2)
* Assault
* Resisting lawful apprehension
* Willfully and wrongfully damaging property of another Soldier 

6.  On 22 February 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, of the maximum penalties allowed under the UCMJ, and of the effects of a UOTHC discharge.  Subsequent to counseling the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The applicant declined to submit a statement in his own behalf.  

7.  On 15 March 1983, the separation authority approved the applicant’s request for discharge and directed that the applicant be issued a UOTHC discharge.

8.  On 28 March 1983, the applicant was informed of his right to request a separation physical examination prior to his discharge and he declined by waiving this rights.  



9.  On 31 March 1983, the applicant underwent a mental status evaluation.  The examining physician determined the applicant was mentally responsible and had the mental capacity to understand and participate in separation proceedings.  There was no disqualifying mental condition found that would have supported separation processing through medical channels.  

10.  On 31 March 1983, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-300, for the good of the service-in lieu of trial by court-martial with a UOTHC discharge.

11.  On 14 February 1985, the applicant appeared at a personal appearance hearing before the Army Discharge Review Board (ADRB) with counsel in Saint Petersburg, Florida.  The applicant and his counsel presented his issues to the ADRB at this hearing. 

12.  On 26 February 1985, after reviewing the applicant’s entire service record, the testimony and evidence presented by the applicant and his counsel at the personal appearance hearing, the ADRB determined the applicant’s discharge was proper and equitable and unanimously voted not to change the characterization or reason for the applicant’s discharge.    

13.  The applicant provides a psychiatric evaluation completed in January 2008, which indicates he suffers from a bi-polar disorder and alcohol dependence.  He also provides character references from family, landlord, clergy, and friends.  These individuals attest to the applicant’s recent success in overcoming his 
bi-polar disorder and alcoholism and attempts at improving his life.  

14.  Army Regulation 635-200 (Personnel Separations) 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 is normally considered 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.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.




15.  Army Regulation 635-200 provides that an HD 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.  It also provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to upgrade his discharge and the supporting psychiatric evaluation and character references have been considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses 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 the applicant received was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an HD or a GD by the separation authority at the time of his discharge and it does not support an upgrade to an HD or GD at this time. 
 
4.  The applicant’s recent post-service efforts at rehabilitation, as presented in the psychiatric evaluation and character references provided, are noteworthy.  However, there is no evidence the applicant suffered from a disabling mental condition that would have supported his separation processing through medical channels at the time of his discharge processing, as evidenced by the mental status evaluation completed at the time.  Further, his discharge accurately reflects his overall record of undistinguished service which is not sufficiently meritorious to support an upgrade of his discharge, and his recent post-service rehabilitation attempts alone are not sufficiently mitigating to support granting 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)                                         AR20110001824



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ABCMR Record of Proceedings (cont)                                         AR20110001824



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