IN THE CASE OF:	  

		BOARD DATE:	    4 October 2011

		DOCKET NUMBER:  AR20110005598 


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 his under other than honorable conditions (UOTHC) discharge be upgraded.  

2.  He states he/his:

* was young and dumb when he joined the U.S. Army
* way of thinking and acting have changed throughout the years
* is unable to obtain employment with a UOTHC discharge

3.  He provides five letters of support and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 was born on 8 October 1967 and he enlisted in the Regular Army on 27 August 1987 at age 19.  

3.  On 6 April 1988, charges were preferred against him for being absent without leave from 16 February to 28 March 1988.

4.  He consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He did not submit statements in his own behalf.  

5.  The separation authority approved his 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.

6.  On 19 May 1988, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an Under Other Than Honorable Conditions Discharge Certificate.  He completed 7 months and
11 days of creditable active service with 42 days of lost time.  

7.  The applicant provided five letters of support from individuals who attest that he:

* completed substance abuse training at the Walden House Substance Abuse Program in January 2011
* was associated with "Hope Again" and completed all instructional materials presented to him
* was an independent, law-abiding, and self-supporting member of society
* has been a resident of the Volunteers of America La Cienega VS90 transitional housing program since January 2011
* has made a huge transformation within the past 9 months
* was dependable, trustworthy, responsible, loyal, and compassionate towards his fellow man  

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

   a.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense(s) 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 UOTHC discharge 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.  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 contends he was young and dumb when he joined the U.S. Army.  Records show the applicant was age 19 at the time of enlistment and age 20 at the time of his offense.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  

2.  His contention that the UOTHC discharge affects his employment opportunities is acknowledged.  However, the ABCMR does not amend/or correct military records solely for the purpose of making an applicant eligible for employment opportunities.  

3.  The applicant's post-service accomplishments as described in his letters of support are commendable.  However, these letters alone are not sufficiently mitigating to warrant relief in this case.  

4.  The applicant’s record shows he was charged with the commission of an offense (AWOL) 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.  

5.  The applicant was advised of the effects of a UOTHC discharge and he was afforded the opportunity to submit statements in his own behalf; but he declined.

6.  The applicant's record shows he was AWOL 42 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 a fully honorable or general discharge.

7.  The applicant has not provided any evidence which indicates that an error or injustice exists in this 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)                                         AR20110005598



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ABCMR Record of Proceedings (cont)                                         AR20110005598



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