IN THE CASE OF:	  

		BOARD DATE:	  11December 2011

		DOCKET NUMBER:  AR20110017153 


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 an honorable discharge.

2.  The applicant states he did not receive an Article 15.  

3.  The applicant did not provide any supporting documents.

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 enlisted in the Regular Army on 4 December 1986.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was specialist/E-4. 
3.  The applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 December 1991 for being absent without leave (AWOL) during the period 21 October 1991 to 18 November 1991.

4.  A DD Form 458 (Charge Sheet), dated 26 October 1992, shows he was charged with one specification of absenting himself from his organization on or about 15 January 1992 to on or about 22 October 1992.

5.  On 28 October 1992, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged UOTHC and the results of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 7 December 1992, the applicant's unit commander recommended approval of the applicant's request.  The unit commander stated that the applicant had become disillusioned with the military and his retention was not in the best interest of the Army.  

7.  On 15 December 1992, the appropriate separation authority approved the applicant’s request and directed the issuance of a UOTHC discharge and reduction to pay grade E-1.

8.  Accordingly, he was discharged in pay grade E-1 on 5 January 1993, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  His service was characterized as UOTHC.  He was credited with completing 5 years, 3 months, and 14 days of active service with lost time from “5” January 1992 to 22 October 1992.

9.  On 14 March 2003, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

10.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation specified a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded to honorable because he did not receive an Article 15 was carefully considered; however, is not supported by the evidence of record.

2.  The applicant's record of service shows he received an Article 15 on               6 December 1991 for being AWOL during the period 21 October 1991 to            18 November 1991.

3.  The applicant's record shows he was charged with the commission of an offense (a lengthy AWOL) punishable under the UCMJ 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.  He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  Procedurally, he was required to consult with defense counsel.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.

4.  The evidence shows his chain of command supported his request and he was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  

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 he was aware of that prior to requesting discharge.  The reason for discharge and the characterization of service were both proper and equitable.


6.  In view of the foregoing, there is no basis to grant the requested relief.

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)                                         AR20110017153





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ABCMR Record of Proceedings (cont)                                         AR20110017153



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