BOARD DATE: 15 September 2011
DOCKET NUMBER: AR20110004921
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 that his discharge under other than honorable conditions be upgraded to a general discharge.
2. The applicant states:
* his record is not in error, the error was in his judgment
* he is not making any excuses
* he was young and made some bad excuses which he has paid for ever since
3. The applicant provides no additional evidence.
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 applicants 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 applicants 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 Army for 2 years and 23 weeks on 17 November 1993. He completed training as a petroleum supply specialist.
3. On 3 October 1995 the applicant was notified that charges were pending against him for being absent without leave (AWOL) from 31 August 1995 until 30 September 1995. He acknowledged receipt of the notification on 5 October 1995. After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he elected not to submit a statement in his own behalf and he acknowledged he understood the following:
* if his request for discharge was accepted, he could be discharged under other than honorable conditions
* as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge
4. The appropriate authority approved the request for discharge on 11 December 1995. On 8 January 1996, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He had completed 2 years and 22 days of net active service this period.
5. A review of the available records does not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations.
6. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. 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.
7. Paragraph 3-7b of Army Regulation 635-200 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 applicants contentions have been noted.
2. Youth and/or immaturity are not sufficient justifications to warrant an upgrade of his discharge. His records show that charges were pending against him for being AWOL from 31 August 1995 until 30 September 1995. Rather than stand trial by court-martial he elected to be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.
3. In accordance with the applicable regulation, a discharge under other than honorable conditions is normally considered appropriate.
4. In view of the foregoing, the applicants request should be denied.
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) AR20090005994
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20110004921
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2013 | 20130021487
The applicant requests an upgrade of his under other than honorable conditions discharge. On 10 July 1995, court-martial charges were preferred against him for one specification of AWOL from 8 May 1995 to 7 July 1995. On 21 July 1995, consistent with the applicant's chain of command's recommendations, 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 trial by a court-martial.
ARMY | BCMR | CY2013 | 20130007177
The applicant requests an upgrade of his under other than honorable conditions discharge to a fully honorable discharge. The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by a court-martial with a character of service of under other than honorable conditions. The evidence of record clearly shows he was on ordinary leave from 12 February to 22 March 1995.
ARMY | BCMR | CY2013 | 20130017359
The applicant requests an upgrade of his under other than honorable conditions discharge. On 4 April 1995, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available...
ARMY | BCMR | CY2008 | AR20080018581
The applicant requests that his 1995 discharge under other than honorable conditions be upgraded to honorable. The applicant states he already had one honorable discharge and had a good record up until he was separated. On 20 November 1995, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued.
ARMY | BCMR | CY2012 | 20120009066
The applicant requests an upgrade of his discharge under other than honorable conditions to an honorable discharge. He also acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or to a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions. The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by a court-martial...
ARMY | BCMR | CY2014 | 20140019299
Court-martial charges were preferred against him on 23 October 1995 for absenting himself from his unit on or about 19 September 1995 and for remaining absent as of the date the charges were preferred. Based on his record of indiscipline, including a violation of the UCMJ that resulted in court-martial charges, and in view of the fact that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge, his service clearly did not meet...
ARMY | BCMR | CY2011 | 20110011957
The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of trial by a court-martial with a character of service of under other than honorable conditions. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.
ARMY | BCMR | CY2014 | 20140012139
Application for correction of military records (with supporting documents provided, if any). On 17 March 1995, court-martial charges were preferred against him for one specification of AWOL from 25 June 1992 to 9 March 1995. On 22 May 1995, the applicant was accordingly discharged.
ARMY | BCMR | CY2011 | 20110025199
IN THE CASE OF: BOARD DATE: 21 June 2012 DOCKET NUMBER: AR20110025199 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. He acknowledged that he was guilty of the charges or lesser included charges and that if the request was accepted he could receive a discharge under other than honorable conditions. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
ARMY | BCMR | CY2010 | 20100011178
The applicant requests an upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge. The applicant requests that his discharge be upgraded so he may reenter military service. ___________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.