IN THE CASE OF:	  

		BOARD DATE:	  22 February 2012

		DOCKET NUMBER:  AR20110016847 


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 to an honorable discharge (HD).  

2.  The applicant states his discharge was based on an isolated incident and contradicts the recommendation of his commanding general (CG) which was that he receive a general, under honorable conditions discharge (GD).  He claims after requesting discharge lieu of trial by court-martial he found out the evidence against him did not substantiate the charges, and that he served his country with honor and dedication.

3.  The applicant provides no documentary 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 record shows the applicant was appointed a second lieutenant in the Regular Army on 5 January 1981, as a general aviation officer.  He was promoted to first lieutenant on 5 July 1982, and to captain on 1 August 1984.  His record documents no acts of valor.  

3.  On 27 September 1990, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for two specifications of violating Article 128 of the Uniform Code of Military Justice (UCMJ) by committing assault; and of violating Article 134 of the UCMJ by being drunk and disorderly.  

4.  On 29 August 1990, the applicant consulted with legal counsel and was advised of his rights in connection with the charges against him and the associated implications and of the rights available to him.  Subsequent to receiving this legal counsel, on 12 September 1990, he voluntarily requested resignation for the good of the service.  In his resignation request, he stated he did not desire to appear before a court-martial or board of officers.  He also confirmed he had not been subject to coercion with respect to his resignation request and had been advised and fully understood the implications of this action.  He further confirmed he understood that if his resignation was accepted, he could receive an UOTHC discharge which could result in his not receiving separation pay and being barred from all rights and benefits administered by the VA (Department of Veterans Affairs).  

5.  On 11 October 1990, the applicant’s garrison commander, a colonel, recommended the applicant’s resignation request be approved and that the applicant receive an UOTHC discharge.  

6.  On 23 October 1990, the CG, United States Army South, recommended the applicant’s resignation be approved and that he receive a GD.  

7.  On 3 December 1990, the Deputy Assistant Secretary (DA Review Boards and Equal Employment Opportunity Compliance and Complaints Review) accepted the recommendation of the Ad Hoc Review Board that the applicant’s resignation be accepted and he be discharged with an UOTHC discharge.  On 
7 January 1991, the applicant was discharged accordingly.

8.  There is no evidence of record indicating the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15 year statute of limitations.  

9.  Army Regulation 635-120 implements the statutory provisions of Title 10 United States Code governing officer separations and provides policies and procedures for separating officer from active duty.  Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7)(misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provides that a resignation for the good of the service, when approved at Headquarters Department of the Army, is normally accepted as being under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his UOTHC discharge be upgraded to an HD has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms that the applicant voluntarily elected to request resignation for the good of the service in lieu of trial by court-martial in order to avoid possibly receiving a punitive discharge.  His separation processing was accomplished in accordance with applicable law and regulation and his rights were fully protected throughout the separation process.  

3.  By regulation, a resignation for the good of the service, when approved at Headquarters Department of the Army, is normally accepted as being under other than honorable conditions.  Although the applicant’s duty performance prior to the incident leading to his resignation request was generally good, his record document no acts of valor or significant achievement sufficient to mitigate his misconduct represented in the court-martial charges against him.  Therefore, notwithstanding the recommendation of his CG, absent evidence of error or injustice related Department of the Army AD Hoc Review Board process there is an insufficient evidentiary basis to support an upgrade of the applicant’s discharge at this late date.  


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)                                         AR20110016847



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ABCMR Record of Proceedings (cont)                                         AR20110016847



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