IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110004210 


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 a general discharge.

2.  The applicant states he was not correctly informed of the repercussions this type of discharge would cause in future job opportunities.  He further states he was not given the opportunity to receive an honorable discharge.

3.  The applicant provides a Congressional Inquiry packet including a 
self-authored statement and character references 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 5 June 1984.  He was trained in and awarded military occupational specialty (MOS) 91A (Medical Specialist).  Private first class (PFC)/E-3 is the highest rank/grade he attained while serving on active duty.

3.  The applicant's record shows he earned the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  His record documents no acts of valor or significant achievement.

4.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 10 September 1985 for unlawfully striking a female in the facial area with his closed fist.

5.  On 21 September 1985, the applicant departed absent without leave (AWOL) from his unit in Germany.  He remained AWOL for 44 days until returning to military control on 4 November 1985.  

6.  On 13 November 1985, a court-martial charge was preferred against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about
21 September to on or about 4 November 1985.

7.  On 14 November 1985, 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.

8.  In his request for discharge, he 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 (VA), and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  He further 


confirmed he understood that as a result of receiving an under other than honorable conditions discharge he could expect to encounter substantial prejudice in civilian life.  

9.  On 23 January 1986, the separation authority approved the applicant’s voluntary request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to private (PV1)/E-1.  On 14 February 1986, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 1 year, 6 months, and 27 days of creditable active service with 44 days of time lost due to AWOL.

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

11.  The applicant provides three references from friends and co-workers all attesting to his good character and post-service conduct.

12.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his under other than honorable conditions discharge because he was not fully informed of the repercussions of the type of discharge he received has been carefully considered.  However, the evidence of record confirms the applicant consulted with legal counsel and he was fully advised of the impact of an under other than honorable conditions discharge prior to him voluntarily requesting discharge in lieu of trial by court-martial.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  
It also shows that after consulting with defense counsel, he 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.  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 reveals a disciplinary history that includes his acceptance of NJP.  His record of service 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.

4.  The applicant’s post-service conduct, as presented in the character references provided, is noteworthy.  However, his discharge accurately reflects his overall record of service which is not sufficiently meritorious to support an upgrade of his discharge, and his post-service conduct alone is not sufficiently mitigating to support granting the requested relief.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110004210



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ABCMR Record of Proceedings (cont)                                         AR20110004210



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