IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110008333 


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 to a general discharge (GD).

2.  The applicant states he is a:

   a.  wonderful outgoing person, willing to go the extra mile for others, extremely diligent; and
   
b.  a hard worker with a strong work ethic in order to give his family the best in life.

3.  The applicant provides a:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* three character references
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 military record shows he enlisted in the Regular Army on 7 March 1984.  He was trained in and awarded military occupational specialty 13B (Cannon Crewmember).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to the rank of specialist four (SP4/E-4) on 1 November 1985, and this was the highest rank he attained on active duty.  It also shows he was reduced on three separate occasions and his final reduction was to the rank of private (PV1/E-1) on 5 November 1993.

4.  Item 21 (Time Lost (Sec 972, Title 10, United States Code) of his DA Form 2-1 shows he was reported absent without leave (AWOL) from 11 March 1988 through 25 September 1993, totaling 2,025 days of lost time.

5.  On 4 October 1993, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 11 March 1988 to on or about 25 September 1993.

6.  On 4 October 1993, 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.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

7.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued an undesirable discharge.

8.  On 5 November 1993, the separation authority approved the applicant's request for discharge and directed that he be discharged under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge.

9.  On 13 December 1993, the applicant was discharged accordingly.  His DD Form 214 shows he completed 4 years, 2 months, and 22 days of active military service for the period covered.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

	a.  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 discharge (HD) or GD is authorized, an under other than honorable conditions discharge is normally considered appropriate.

	b.  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 contends his UOTHC discharge should be upgraded to a GD.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL for an extensive period over 5 1/2 years.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His service clearly did not support a GD at the time of his discharge and it does not support an upgrade now.

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)                                         AR20110008333





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ABCMR Record of Proceedings (cont)                                         AR20110008333



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