IN THE CASE OF:	  

		BOARD DATE:	    9 August 2011

		DOCKET NUMBER:  AR20110001927 


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

2.  The applicant states his discharge is inequitable because it was based on one isolated incident (a minor car accident on base) in 24 months of service with no other adverse actions.  There was no proof of alcohol or drug involvement and he was discharged after 3 or 4 days with no explanation.

3.  The applicant provides no supporting documentation.

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 enlisted in the Regular Army on 7 April 1980 and he was awarded military occupational specialty 11B (Infantryman).

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

	a.  21 November 1980, for illegal drug possession and negligently damaging the base perimeter fence (with a motor vehicle);

	b.  24 April 1981, for being absent without leave (AWOL) from 20 through 22 April 1981;

	c.  4 June 1981, for being AWOL from 1 through 6 May 1981 and 27 through 28 May 1981.

4.  On 12 June 1981, court-martial charges were preferred under the Uniform Code of Military Justice, under Article 92 (disobeying a lawful order from a noncommissioned officer), Article 128 (assault), and two specifications under Article 134 (communicating a threat).  

5.  While pending court-martial action, the applicant went AWOL on 16 June 1981 and remained absent until 1 July 1981.  Upon his return he was placed in pretrial confinement from 1 July 1981 through 6 July 1981.  

6.  On 14 July 1981, he received NJP for being AWOL from 10 through 12 July 1981.

7.  On 28 July 1981, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of chapter 10, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), due to conduct triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged he was guilty of the charges or lesser included charges and that he could receive an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged that such a discharge would deprive him of many or all benefits as a veteran under both Federal and State laws, and he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

8.  On 13 August 1981, the court-martial authority approved the separation action, directed that the applicant be reduced to the lowest enlisted grade, and the issuance of a UOTHC discharge.

9.  On 24 August 1981, the applicant was administratively discharged under the provisions of chapter 10, Army Regulation 635-200, due to conduct triable by court-martial with a UOTHC discharge.  He had completed 1 year, 3 months, and 20 days of creditable active service and he had 28 days of lost time due to being AWOL and 6 days due to being in military confinement.

10.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  Chapter 3, in effect at that time, outlined the criteria for characterization of service.  It provided the following:

   a.  an HD is a separation with honor.  The honorable characterization of service is appropriated when the quality of the Soldiers service generally has met the standards of acceptable conduct and performance of duty;
   
   b.  a GD is a separation under honorable conditions.  When authorized, it is issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD. 

	c.  a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier;

	d.  paragraph 3-7c(7) specifically addresses the issuance of a UOTHC discharge under the provisions of chapter 10 of this regulation; and

	e.  chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 92, failure to obey a lawful order; Article 128, assault; and Article 134, communicating a threat.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states his discharge is inequitable because it was based on one isolated incident (a minor car accident on base) in 24 months of service with no other adverse actions.  There was no proof of alcohol or drug involvement and he was discharged after 3 or 4 days with no explanation.


2.  The applicant had received NJP on four occasions, was AWOL on five occasions, and had serious court-martial charges pending when he voluntarily requested discharge under chapter 10.  The accident the applicant refers to occurred 9 months before his discharge and he was found to have been in possession of marijuana at the time.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion or duress.

4.  There is no inequity or injustice in the characterization of his service and no relief is warranted.

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)                                         AR20110001927



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ABCMR Record of Proceedings (cont)                                         AR20110001927



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