IN THE CASE OF:	   

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110017393 


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 or general discharge.

2.  The applicant states it has been 19 years since he has been discharged and he has a family to support.  His current discharge is hindering him from getting a good job.

3.  The applicant provides no additional evidence.

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 17 April 1990.  He completed initial training and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  A DD Form 458 (Charge Sheet), dated 18 November 1991, shows he was charged with one specification of absenting himself from his organization on or about 20 August 1991 to on or about 18 November 1991.

4.  On 26 November 1991, 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.

5.  On 5 December 1991, his unit commander recommended approval of the applicant's request and that he receive an UOTHC discharge certificate.

6.  On 5 February 1992, the appropriate separation authority approved his request and directed the issuance of an UOTHC discharge and reduction to pay grade E-1.

7.  Accordingly, he was discharged in pay grade E-1 on 11 March 1992, 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 1 year, 7 months, and 25 days of active service with 90 days lost time due to AWOL.

8.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 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.
10.  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.

11.  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 requests an upgrade of his UOTHC discharge to an honorable or general discharge in order to have better employment opportunities.

2.  The record of evidence shows he was charged with the commission of an offense (90 days 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.

3.  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.

4.  There is no evidence of record showing an error or injustice.  The simple passage of time does not sufficiently mitigate his misconduct.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, his request should be denied.








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)                                         AR20110017393





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ABCMR Record of Proceedings (cont)                                         AR20110017393



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