IN THE CASE OF:	  

		BOARD DATE:	    4 August 2011

		DOCKET NUMBER:  AR20110002635 


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 a general, under honorable conditions discharge (GD).

2.  The applicant states his legal counsel and he agreed to separation with a GD not for benefit purposes but for the purpose of reenlistment.  

3.  The applicant provides no documentary evidence in support of his application. 

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 26 July 1989.  His record documents no acts of valor or significant achievement. 

3.  On 11 September 1989, while still in training, the applicant departed absent without leave (AWOL) from his unit at Fort Leonard Wood, Missouri.  He was dropped from the rolls of the organization on 11 October 1989, and returned to military control on 7 November 1989.    

4.  On 8 November 1989, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 
11 September 1989 through on or about 7 November 1989.  

5.  On 16 November 1989, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ; of the possible effects of a UOTHC discharge; and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-marital.  In his request for discharge, the applicant acknowledged that by submitting a request for discharge he was acknowledging that he was guilty of the charge against him or of a lesser included offense therein contained while also authorized the imposition of a punitive discharge.  He further stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  He further confirmed that he understood if his request for discharge were accepted he could receive a UOTHC discharge and as a result could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA); and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  On 28 November 1989, the separation authority approved the applicant’s request and directed he receive a UOTHC discharge.  On 8 December 1989, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 2 months and 17 days of creditable active service with 56 days of time lost due to AWOL. 

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge 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.

	c.  Paragraph 3-7b provides that 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 applicant's request for upgrade of his UOTHC discharge because he agreed to a separation based on receiving a GD has been carefully 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 for the good of the service - 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.  In his request for discharge, the applicant clearly acknowledged the possibility of receiving a UOTHC discharge and that he understood the possible effects of receiving this type of discharge.  There is no indication that the applicant and/or his counsel requested separation contingent on receiving a GD.  

4.  The UOTHC discharge received by the applicant 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 honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.

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)                                         AR20110002635



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ABCMR Record of Proceedings (cont)                                         AR20110002635



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