IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110004616 


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

2.  He states, in effect, he was told that his discharge would be upgraded to honorable.  He states that his finger was broken when he was in the service.  They [his command] said his discharge was the best for both parties.  The commanding officer said they did not need his military occupational specialty (MOS).  

3.  He provides no additional documents.  

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 23 October 1985 for a period of 3 years.  He completed basic and advanced individual training and was awarded MOS 72E (Combat Telecommunications Center Operator).  He was assigned to Fort Hood, TX as a Telecommunications Center Operator in duty MOS 72E1O.  

3.  His service record contains a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 5 August 1986, which shows he fractured his middle phalanx [bones that form fingers and toes] when he was playing basketball on post and off duty on 17 June 1986.  

4.  On 9 February 1987, charges were preferred against the applicant for being absent without leave (AWOL) from 16 December 1986 to 1 February 1987.  

5.  The applicant consulted with legal counsel and 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 court-martial.  In doing so, he admitted guilt to the offense charged and acknowledged he understood that he might encounter substantial prejudice in civilian life and be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued to him.  He did not submit statements in his own behalf.

6.  The company commander recommended approval with a UOTHC discharge.  He stated the applicant's conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct discharge.  Based on the applicant's previous record punishment would have a minimal rehabilitative effect.  The company commander believed a discharge would be in the best interest of all concerned.  

7.  The separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with the issuance of a UOTHC discharge.

8.  On 25 March 1987, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge.  He had completed 1 year, 3 months, and 17 days of active military service and he had 48 days of lost time.  

9.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.


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

   a.  Chapter 10 of that regulation 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 HD or general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate.
   
   b.  Paragraph 3-7a 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.

   c.  Paragraph 3-7b 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 contention that he was told his discharge would be upgraded to an HD is without merit.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge.

2.  His service record shows he was charged with the commission of an AWOL offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army 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 evidence of record supports his contention that he injured his finger playing basketball while in the service.  However, this issue is not sufficiently mitigating to warrant an upgrade of his discharge.

4.  He contends that the commanding officer said they did not need his MOS.  However, the evidence of record does not support this claim.  
5.  The applicant was advised of the effects of a UOTHC discharge.  He was afforded the opportunity to submit statements in his own behalf, but he declined.

6.  The applicant's record shows he was AWOL 48 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either an HD or GD.

7.  The evidence of record does not indicate the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant 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)                                         AR20110004616



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110004616



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1