IN THE CASE OF: 

		BOARD DATE:  24 April 2012

		DOCKET NUMBER:  AR20110021494 


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 honorable or general under honorable conditions.

2.  The applicant states he had problems with his commanding officer who took issues personally and who unjustly and unfairly found fault with the applicant's duty performance.  The commander pursued unjust disciplinary actions.  The applicant recently applied for Department of Veterans Affairs (VA) benefits.  Although he has an honorable discharge for his first 3-year enlistment, the later discharge may have a negative impact on his VA claim.

3.  The applicant provides 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, 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 12 May 1987.  He completed training and was awarded military occupational specialty 13B (Cannon Crewmember).

3.  His DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 5 (Oversea Service) that he served in Hawaii from 11 August 1990 through 11 August 1993,

	b.  item 9 (Awards, Decorations and Campaigns):

* Army Service Ribbon
* Army Good Conduct Medal (Not Favorably Considered)
* National Defense Service Medal
* Noncommissioned Officer Professional Development Ribbon
* Army Good Conduct Medal (1st Award)
* Oversea Service Ribbon
* Army Achievement Medal
* Marksman Marksmanship Qualification Badge with Field Artillery Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar

	c.  item 18 (Appointment and Reductions) that he was promoted to sergeant/E-5 on 1 December 1992 and reduced to specialist/E-4 effective 15 December 1994.

4.  On 2 May 1994, charges were preferred against the applicant for the following violations of the Uniform Code of Military Justice (UCMJ):

* Article 86 – five specifications of being absent without authority (1 day, 1 day, 4 days, 2 days, and 4 days)
* Article 91 – one specification of willfully disobeying a lawful order from a noncommissioned officer
* Article 95 – one specification each of resisting arrest and escaping from custody
* Article 128 – one specification of unlawfully striking another Soldier
* Article 134 – one specification of being drunk and disorderly

5.  On 10 May 1994, he consulted with counsel and he voluntarily requested 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 acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he would receive a UOTHC discharge, he would be deprived of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the VA.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a UOTHC discharge.  He also indicated he had received legal advice but his request for discharge had been made voluntarily and it reflected his own free will.

6.  The applicant's chain of command recommended approval of his voluntary request for discharge with the issuance of a UOTHC character of service.  The separation authority approved the recommendation on 11 May 1994.

7.  On 17 May 1994, the applicant was so discharged.  He completed 7 years of net active service.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows:

* Army Service Ribbon
* National Defense Service Medal
* Army Achievement Medal
* Overseas Service Ribbon
* Army Good Conduct Medal (2d Award)
* Noncommissioned Officer Professional Development Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 provides 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 honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

	b.  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.

	c.  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 contends his discharge should be upgraded because he had problems with his commanding officer who took issues personally and who unjustly and unfairly found fault with his performance of his military duties.

2.  Based on his record of misconduct, the applicant's service clearly 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 upgrade of his discharge to an honorable or a general discharge.  There is no available evidence to substantiate his contentions that the commanding officer was unfair.

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was characterized by the nature of his offenses and the circumstances of this separation.

4.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA.



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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20110021494



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