BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110021017 


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 upgrade of his discharge.

2.  The applicant states he has not been in any trouble since 1990.  He further states he is a nurse now, has a family, and has dedicated his life to helping people.

3.  The applicant provides a copy of a Memorandum for Separatee (SUBJECT:  Review of Discharge if Other Than Honorable) and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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, and 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 24 May 1988.  His records show he completed training and he was awarded military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3. 

3.  Records show that the applicant was barred to reenlist and received nonjudical punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 21 July 1989, for disobeying a lawful order
* 26 May 1990, for failing to be at his appointed place of duty

4.  Additional, the applicant was counseled on several occasions for acts of indiscipline.

5.  There is no evidence in the available records that shows that the applicant was charged for violation of Article 112a, distribution of marijuana; however, the offense is listed in the separation proceeding.

6.  The charge sheet is not available; however, on 21 November 1990, subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trail by court-martial.

7.  In his request for discharge for the good of the service, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge for the charge and its specification, to wit:  one violation of Article 112a, distribution of marijuana.   He further acknowledge 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 Department of Veterans Affairs, and that he would be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 29 November 1990, the separation authority approved the applicant's request for discharge.  On 10 December 1990, the applicant was discharged accordingly with a discharge under other than honorable conditions (UOTHC).  The DD Form 214 he was issued shows he completed 2 years, 6 months, and
17 days of net active service this period.

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

10.  Army Regulation 635-200 (Personnel Separations) 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 UOTHC is normally considered appropriate.

11.  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.

12.  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 request for upgrade of his UOTHC discharge to a general or honorable discharge has been carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant’s record indicates he was charged with the commission of offenses 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.  Therefore, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  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.


4.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or 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)                                         AR20110021017



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ABCMR Record of Proceedings (cont)                                         AR20110021017



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