IN THE CASE OF:	  

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110024438 


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

2.  The applicant states he was told his discharge would be upgraded to an honorable discharge after 90 days and he was not told he had to request the upgrade.

3.  The applicant provides no additional evidence. 

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 6 December 1985.  He completed training and was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained while on active duty was private/E-2.

3.  Records show the applicant was absent without leave (AWOL) on or about:

* 8 to 14 July 1986
* 19 July to 21 July 1986
* 31 July to 3 September 1986

4.  On 9 September 1986, the applicant provided the following statements:

* he went AWOL because he did not want anything to do with the military
* he asked to be chaptered several times, but all he got was a bunch of hassle so he just left on his own
* he realized the military was not for him, he was still young enough to go to school, play sports, or do something that he liked doing
* he went to his section chief, battery commander, and chaplain and no action was taken

5.  On 10 September 1986, charges were preferred against the applicant for the above three periods of AWOL.

6.  On 10 September 1986, following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Enlisted Separations).  In his request for discharge, the applicant acknowledged that he understood by requesting 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.  He also acknowledged that he understood that if his 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.  

7.  On 6 October 1986, the separation authority approved the applicant's request and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  On 29 October 1986, the applicant was discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial with a UOTHC discharge.  The applicant completed a total of 9 months and 14 days of creditable active military service.  He also had 44 days of lost time.
9.  There is no evidence 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 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.  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 UOTHC discharge is normally considered appropriate.

11.  Army Regulation 635-200 also provides guidance on characterization of service.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 contention that his UOTHC discharge should be upgraded to an honorable discharge was carefully considered and determined to be without merit.

2.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

3.  His record shows he was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offense(s) charged and requests for discharge in lieu of trial by court-martial are voluntary requests.  As such, government regularity insofar as the discharge process must be presumed.  Therefore, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His 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)                                         AR20110024438



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ABCMR Record of Proceedings (cont)                                         AR20110024438



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