IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110019767 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that he had never been in any serious trouble before the incident that led to his discharge; however, his commander did not like him because of a prior altercation with another Soldier.  He further states that he was under the influence of alcohol, he had served 5 years, and one problem caused him to get a bad discharge; however, he was told that it would change to a general discharge after 1 year.

3.  The applicant provides a copy of the facts and circumstances surrounding his 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 enlisted in the Regular Army in Raleigh, North Carolina on 19 June 1981 for a period of 3 years and training as a military policeman.  He was transferred to Fort McClellan, Alabama to undergo one-station unit training.  He did not complete his training as a military policeman; he was transferred to Fort Gordon, Georgia to undergo training as a multi-channel communications equipment operator.

3.  He completed his training and was transferred to Fort Campbell, Kentucky for his first duty assignment.  He was advanced to the pay grade of E-4 on 1 December 1982.

4.  On 19 August 1983, he extended his enlistment for a period of 28 months in order to complete an overseas tour in Hawaii.  He served in Hawaii from 
23 October 1983 to 12 October 1985 and he was then transferred to Fort Hood, Texas for assignment to a signal company.

5.  On 10 February 1986, his installation driving privileges were suspended by the commanding general (CG) due to drunk driving.

6.  On 25 July 1986, charges were preferred against the applicant for:

* Disobeying a lawful order from a superior commissioned officer
* Disobeying a lawful order from the CG by driving on post when his driving privileges had been suspended
* Resisting apprehension by a military policeman and noncommissioned officer (NCO)
* Driving while drunk
* Assaulting a military policeman/NCO in the face with a closed fist
* Unlawfully carrying a concealed weapon (.25 caliber pistol)

7.  On 29 July 1986, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.  He acknowledged that he understood there was no automatic upgrade or review by a Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or to this Board if he wished a review of his discharge.

8.  The applicant’s entire chain of command recommended that he be discharged under other than honorable conditions.  On 5 August 1986, the CG approved his request and directed that he be discharged under other than honorable conditions.

9.  Accordingly, 18 August 1986, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 5 years and 2 months of active service.

10.  On 8 September 1986, he applied to the ADRB for an upgrade of his discharge.  He offered no issues of propriety or basis for upgrading his discharge in his application.  

11.  On 2 July 1987, after reviewing the applicant’s official records, the ADRB determined that his discharge was both equitable and proper under the circumstances and voted unanimously to deny his request.

12.  On 25 September 1987, he was advised that he could reapply to the ADRB for a personal appearance before that board if he had new, substantial, and relevant evidence to present to the ADRB that was not available at the time of his original hearing.  He was also advised that he could apply to this Board.  There is no evidence to show that he requested a personal appearance before the ADRB.

13.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of lesser-included offenses which authorizes the imposition of a bad conduct or dishonorable discharge and the individual must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge the individual might receive.  A discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provides that 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  The applicant's request has been noted.  However, it is not sufficiently mitigating to warrant relief under the circumstances, especially given the nature of his misconduct and the absence of mitigating circumstances at the time.  His service simply did not rise to the level of a general discharge.

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)                                         AR20110019767



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ABCMR Record of Proceedings (cont)                                         AR20110019767



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