IN THE CASE OF: 

		BOARD DATE: 5 June 2012

		DOCKET NUMBER:  AR20110024536 


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 general under honorable conditions.

2.  The applicant states that:

	a.  at the end of his first enlistment he received an honorable discharge.  He reenlisted and was stationed in Germany.  He was a very dedicated and reliable career Soldier, well on his way to becoming a noncommissioned officer (NCO).  He received several awards, including the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Southwest Asia Service Medal with two bronze service stars, Expert Marksmanship Qualification Badge, Mechanic and Driver Badge, Army Commendation Medal, Army Achievement Medal with two Oak Leaf Clusters, and the Good Conduct Medal.

	b.  his actions throughout his military career, except for the night of 
26 February 1996, were very admirable and selfless.  He was always mission-oriented and professional.  Since his return from Desert Storm he had been haunted by recurring nightmares that disrupted his sleep.  During the day he occasionally had panic attacks but was not able to ask for help because he feared he would not be considered a good Soldier.  So he self-medicated
with alcohol until he deployed to Bosnia where alcohol was not easily obtained.

	c.  on 24 February 1996, he and another Soldier took a convoy from Bosnia to Croatia.  He was operating on about 3 hours of sleep in the previous 3 days.  He began to get sick, and was drinking several bottles of cough/cold medicine each day.  Their vehicle broke down and one of the other Soldiers went to a local shop and bought a large bottle of moonshine alcohol.  He thought he could drink enough to allow him to sleep.  But the effect was much worse than he imagined.  He recalls they ended up outside a local night club.  He got back to his tent but the next morning the military police took him back to his camp in Bosnia. 

	d.  he returned to his duties and a few days later he was informed of the charges against him.  He was told he could have a trial and dispute the charges or, because of his unblemished record, he could accept a chapter 10 discharge under other than honorable conditions.  He chose to be discharged.

	e.  other than his actions on 24 February 1996, his military career was exceptional and professional.  His discharge status affects his ability to receive benefits that he desperately needs for himself and his family.

3.  The applicant provides copies of:

* memorandum listing mitigating and extenuating factors 
* DA Form 1059 (Service School Academic Evaluation Report) 
* DA Form 638-1 (Recommendation for Award) for Army Commendation Medal
* Army Commendation Medal Certificate
* two Army Achievement Medal Certificates
* U.S. Army Europe and Seventh Army Scroll of Appreciation
* Certificate of Achievement
* Company Certificate of Achievement 
* Certificate of Commendation, VII Corps Saudi Arabia, for Operation Desert Storm
* Certificate of Appreciation
* Crook County Veterans Services letter 

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 28 July 1988 for a period of
4 years.  He completed training and was awarded military occupational specialty (MOS) 62E (Heavy Construction Equipment Operator).  He was released from active duty on 11 February 1992 for the Convenience of the Government under the 1992 Early Transition Program.  He enlisted again in the Regular Army on 
12 April 1994, for a period of 3 years, and was reclassified into MOS 63B (Light Vehicle Mechanic).

3.  The DA Form 2-1 (Personnel Qualification Record) he last reviewed on
7 February 1992 shows in:

	a.  item 5 (Overseas Service) that he served in Germany from 28 February 1988 through 10 February 1992 and in Saudi Arabia from 26 February 1990 through 3 May 1991,

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

* Army Service Ribbon
* National Defense Service Medal
* Southwest Asia Service Medal with two bronze service stars
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle and Grenade Bars
* Defense of Saudi Arabia Campaign
* Liberation and Defense of Kuwait Campaign

	c.  item 18 (Appointment and Reductions) that he was advanced to specialist four on 7 February 1990.

4.  The DA Form 2-1 he last reviewed on 25 April 1994 shows in:

	a.  item 5 that he served in Germany from 6 September 1994 through
5 September 1997,

	b.  item 9 that he was awarded the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Southwest Asia Service Medal with two bronze service stars, Mechanics Badge, and the Good Conduct Medal.



5.  On 14 March 1996, charges were preferred against the applicant for the following violations of the Uniform Code of Military Justice (UCMJ):

* Article 86 – one specification of being absent without authority 
* Article 92 – one specification of failure to obey a lawful general order 
* Article 109 – one specification of willfully and wrongfully damaging property other than military property of the United States
* Article 111 – one specification of operating a vehicle while drunk and impaired
* Article 121 – one specification of wrongfully appropriating the property of the U.S. government (a vehicle)
* Article 134 – one specification of being drunk and disorderly and one specification of unlawfully carrying a knife

6.  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 Department of Veterans Affairs (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.

7.  The applicant's company and battalion commanders recommended approval of his request with issuance of a general discharge.  His brigade commander recommended approval of his request with issuance of an under other than honorable conditions discharge.  The separation authority approved the discharge and directed a characterization of service of under other than honorable conditions.

8.  On 3 June 1996, the applicant was so discharged.  He had completed a total of 5 years, 8 months, and 6 days of net active service.  His DD Form 214 shows:

* Army Commendation Medal
* Army Achievement Medal (3 Awards)
* Army Good Conduct Medal
* National Defense Service Medal
* Southwest Asia Service Medal with two bronze service stars
* Army Service Ribbon
* Driver and Mechanic Badge with Driver-W and Driver T Bars

9.  The applicant applied to the Army Discharge Review Board after that board's 15-year statute of limitations period had expired.

10.  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 3-7b 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, other than his actions on 24 February 1996, his military career was exceptional and professional.  His discharge status affects his ability to receive benefits that he desperately needs for himself and his family.

2.  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 that he might have received.  His service was characterized by the nature of his offense and the circumstances of this separation.

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

4.  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 a general discharge.
5.  The ABCMR does not upgrade discharges based 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)                                         AR20110024536



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