IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004118 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was harassed all the time which caused him to drink and when he drank he got in trouble.

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 (RA) on 27 November 1984.  He was trained in and awarded military occupational specialty (MOS) 68G (Aircraft 


Structural Repairer).  He entered active duty in the rank/grade of private first class (PFC)/E-3 and this is the highest rank/grade he held while serving on active duty. 

3.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:

	a.  8 May 1985, for failing to obey a lawful order and disorderly conduct;

	b.  23 June 1984, for wrongfully leaving the scene of an accident, operating a motor vehicle while drunk, violating a lawful general regulation by operating an uninsured privately owned vehicle and operating a motor vehicle without a valid permit; and

	c.  10 April 1987, for being drunk and disorderly.

4.  On 27 November 1984, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating:

	a.  Article 86 by failing to go at the time prescribed to his appointed place of duty at the time prescribed on eight separate occasions between 2 April and 10 May 1987;

	b.  Article 91 by willfully disobeying a lawful order

	c.  Article 92 by being under the influence of alcohol while on duty on two separate occasions between 16 April and 10 May 1987;

	d.  Article 95, by unlawfully resisting apprehension on 31 January 1987;

	e.  Article 109, by being drunk and disorderly on 28 March 1987;

	f.  Article 121, by stealing the use of a public facility on 28 March 1987; and

	g.  Article 132, by wrongfully breaking restriction on two separate occasions between 1 and 10 May 1987.

5.  On 11 June 1987, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-marital and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge 


under other than honorable conditions, and of the rights and procedures available to him, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

7.  On 25 June 1987, the separation authority approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to private (PV1)/E-1.  On 15 July 1987, 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 years, 7 months, and 19 days of active service.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the Army Service Ribbon, Overseas Service Ribbon, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  His record documents no acts of valor or significant achievement.

8.  On 5 December 1991, the Army Discharge Review Board (ADRB), after carefully reviewing the applicant's record of service and the issues presented, determined the applicant’s discharge was proper and equitable and unanimously voted not to change the character of service or reason for his discharge.

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

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge because his constantly being harassed caused him to drink and when he drank he got in trouble 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.  He could have elected to submit a statement voicing his current contentions, but he elected not to do so.

3.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  It further shows that in his request for discharge, he admitted guilt to an offense that authorized the imposition of a punitive discharge.  

4.  The under other than honorable conditions discharge he 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 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.  Further, there is no error or injustice related to his separation processing that would support a change to the authority and reason for his discharge.
5.  In view of the foregoing, there is no basis for granting the applicant's an honorable or a general 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)                                         AR20110004118



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ABCMR Record of Proceedings (cont)                                         AR20110004118



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