IN THE CASE OF:	  

		BOARD DATE:	    11 October 2011

		DOCKET NUMBER:  AR20110006317 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD). 

2.  He states he is presently a homeowner and a responsible citizen.  

3.  The applicant provides a deleted and undeleted copy of 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.  His records show he enlisted in the Regular Army on 14 April 1983.  After the completion of training, he served in military occupational specialty 62E (Heavy Construction Equipment Operator). 
3.  On 27 August 1986, the applicant received a General Officer Letter of Reprimand for driving a motor vehicle under the influence of alcohol.  He acknowledged receipt of the letter the same day and elected not to make a statement.  

4.  On 16 October 1986, the Commanding General ordered that the letter of reprimand be filed in the performance portion of his Official Military Personnel File.  

5.  The applicant’s record contains a DD Form 458 (Charge Sheet) which shows he was charged with one specification of going absent without leave (AWOL) from 21 October 1986 to 23 March 1987. 

6.  On 31 March 1987, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of a discharge UOTHC and of the rights available to him.  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10 for the good of the service, in lieu of trial by court-martial.  In his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.

7.  He also stated 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life because of a UOTHC discharge.  After being advised of his rights, the applicant elected not to submit a statement on his behalf.

8.  The applicant's chain of command recommended approval of his request for discharge for the good of the service and that he be discharged UOTHC.  The appropriate approval authority approved the applicant's request for discharge under the provisions of chapter 10 of Army Regulation 635-200.  He directed the applicant be discharged UOTHC and be reduced to the grade of private/E-1.

9.  Accordingly, on 5 May 1987, he was discharged UOTHC, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service- in lieu of trial by court-martial.  His DD Form 214 shows he completed 3 years,     7 months, and 20 days of net active service and had a total of 153 days of lost time due to AWOL. 
10.  His record does not document any acts of valor or special recognition and does not show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge UOTHC is normally considered appropriate.

12.  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.  

13.  Army Regulation 635-200, paragraph 3-7b, states 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 contends that his UOTHC discharge should be upgraded because he is now a responsible citizen and a homeowner.   

2.  The evidence of record shows he was reprimanded by a General Officer for driving a motor vehicle under the influence of alcohol and that the reprimand became a permanent part of his personnel file. 

3.  He was later charged with going AWOL which is a violation of the UCMJ for which a bad conduct or dishonorable discharge could have been imposed.  Rather than face court-martial, he opted to submit a request for discharge in lieu of trial by court-martial, for the good of the service.  His request for discharge was approved.

4.  Accordingly, he was discharged under the provisions of chapter 10 of Army Regulation 635-200.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  

5.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally UOTHC and the evidence shows that the applicant was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

6.  His record does not contain any acts or special recognition which would warrant and upgrade of his discharge.  As such, there is no basis for granting the applicant's request for an upgrade of his discharge to either fully honorable or general under honorable conditions.

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)                                         AR20110006317





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ABCMR Record of Proceedings (cont)                                         AR20110006317



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