IN THE CASE OF:	  

		BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110020589 


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 discharge under other than honorable conditions (UOTHC) to an honorable discharge (HD).

2.  The applicant states he drank a lot to deal with what was going on and now he is trying to receive medical help.

3.  The applicant provides:

* Army Review Boards Agency letters, dated 29 July and 28 September 2011
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces)
* National Personnel Records Center (NPRC) letter, dated 23 June 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* NPRC service details

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 2 November 1976.  He was trained in, awarded, and served in military occupational specialties 11B (Infantryman) and 75C (Personnel Management Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to the rank of staff sergeant/E-6 on 7 January 1988 and this was his highest grade he attained on active duty.

4.  On 14 August 1990, a DD Form 458 (Charge Sheet) was prepared preferring two court-martial charges against the applicant for violating the following two articles of the Uniform Code of Military Justice (UCMJ):

	a.  Article 111 for operating a vehicle while drunk and

	b.  Article 92 for violating a lawful general regulation by wrongfully operating a privately-owned motor vehicle without any valid driver's license.

5.  On 15 August 1990, 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 the procedures and rights 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).

6.  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, 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 a UOTHC discharge.

7.  On 11 September 1990, the separation authority approved the applicant's request for discharge and directed his discharge under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC character of service.  He also directed the applicant's reduction to the lowest enlisted rank of private/E-1.

8.  On 4 October 1990, the applicant was discharged accordingly.  His DD Form 214 shows he completed 13 years, 11 months, and 3 days of active military service during the period covered.

9.  On 13 May 1994 after having carefully reviewed the applicant's record and the issues he presented, the Army Discharge Review Board concluded the applicant's discharge was proper and equitable and voted to deny his request for an upgrade of his discharge.

10.  Army Regulation 635-200 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 HD or a general discharge (GD) is authorized, a discharge UOTHC is normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b of 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 requests an upgrade of his UOTHC discharge to an HD.

2.  The evidence of record shows the applicant was discharged due to the commission of an offense punishable under the UCMJ with a punitive discharge (operating a vehicle while drunk and driving without a valid driver's license).  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

3.  The applicant's misconduct rendered his service below that meriting an HD or a GD at the time of his discharge from the Army.  Therefore, there is no basis upon which to grant his 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 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)                                         AR20110020589



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ABCMR Record of Proceedings (cont)                                         AR20110020589



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