BOARD DATE:	  3 April 2012

		DOCKET NUMBER:  AR20110020877 


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 to honorable.

2.  The applicant states:

* He did not return in a timely manner because he was jailed 
* He had to pay back bad checks before he could be released
* He was under emotional duress and an alcoholic which caused him not to make good choices
* He worked with the US Corps of Engineers after discharge

3.  The applicant provides a letter of inquiry. 

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 records show he enlisted in the Regular Army on 7 April 1987. He completed basic combat and advanced individual training and he was awarded military occupational specialty 94B10 (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was private/E-2.  

3.  A DD Form 458 (Charge Sheet), dated 4 October 1988, shows court-martial charges were preferred against the applicant for one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 1 June 1988 through 21 September 1988.

4.  On 4 October 1988, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.

5.  Following counseling, the applicant submitted a voluntary written request for 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 by court-martial.  

6.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not submit a statement in his own behalf.

7.  On 7 October 1988, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant's reduction to the lowest enlisted grade and issuance of an Under Other Than Honorable Conditions Discharge (UOTHC) Certificate.

8.  On 18 November 1988, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 1 year, 3 months, and 19 days of creditable active military service with 113 days of lost time due to AWOL.

 
9.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  The applicant provides a letter of inquiry indicating that:

* Between 2005 and 2007 he requested an upgrade/correction of his military record through the ABCMR
* Between 2005 and 2007 he also corresponded with the ADRB 
* He has not received a response from either the ABCMR or ADRB
* He enlisted for two years active duty; unfortunately he was discharged with an UOTHC
* He explained to the ABCMR and ADRB the duress he was under because of his marriage
* He worked with the US Corps of Engineers after discharge

11.  The applicant provides no supporting documents and there is no evidence in the Army Review Boards Agency Case Tracking System (ACTS) that shows the applicant applied to either Board prior to this application.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a provides that an honorable discharge 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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge should be upgraded because he was an alcoholic and under emotional duress at that time which caused him not to handle his affairs appropriately was considered and found not to be sufficiently mitigating to upgrade his discharge.

2.  There is no evidence in his record and he has not provided any evidence to show he sought assistance from his chain of command for his personal and family issues.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20120001118



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ABCMR Record of Proceedings (cont)                                         AR20110020877



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