IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110005520 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant did not provide a reason for his request for an upgrade. 

3.  The applicant provides no additional 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's record shows he enlisted in the Army Delayed Entry Program on 28 March 1987 and enlisted in the Regular Army on 23 July 1987 for a period of 4 years.  He was trained in, awarded, and served in military occupational specialty 11C (Indirect Fire Infantryman).  Records further show the highest rank/grade he attained was private first class (PFC)/E-3.

3.  Records show the applicant departed his unit in absent without leave (AWOL) status on 13 March 1989.  He was dropped from the rolls (DFR) of his unit on 12 April 1989.

4.  A DA Form 4187 (Personnel Action), dated 20 August 1989, shows the applicant's status was changed from DFR to returned to military control, effective 14 April 1989.  The remarks section of this form shows he surrendered to military authorities at Fort Carson, Colorado. 

5.  On 24 August 1989 court-martial charges were preferred against the applicant for being AWOL from 13 March 1989 to 14 April 1989.

6.  On 24 August 1989, the applicant submitted a request for discharge for the good of the service under the provisions Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  In his request for discharge the applicant indicated that he had not been coerced into requesting a discharge and he had been advised of the implications that were attached to the request.

7.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  He further acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement on his own behalf.

8.  On 4 August 1989, the separation authority approved the applicant's request for discharge and directed that he receive an UOTHC discharge.  On 22 August 1989, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed a total of 1 year, 11 months, and 20 days of creditable active military service and that he accrued 122 days of lost time.


9.   On 18 August 1992, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

10.  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.  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.

11.  Army Regulation 635-200, 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 contention that his UOTHC discharge should be upgraded was carefully considered.

2.  The evidence of record shows the applicant's request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

3.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records reveal a disciplinary history that included AWOL.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

5.  The applicant was appropriately issued a UOTHC discharge based on the facts of the case.



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)                                         AR20110005520





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ABCMR Record of Proceedings (cont)                                         AR20110005520



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