IN THE CASE OF:	  

		BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20110025199 


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

2.  The applicant states he was accused of a crime and his command did not have proof to show his guilt.

3.  The applicant provides no supporting documentation.

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 13 July 1990 for a period of 8 years.  He was discharged from 

the USAR DEP on 23 June 1991 and he enlisted in the Regular Army on 24 June 1991 for a period of 4 years.  He completed training and he was awarded military occupational specialty (MOS) 31M (Multi-Channel Communications Systems Operator).

3.  The applicant was advanced to specialist (SPC)/E-4 on 1 December 1992 and awarded the Army Good Conduct Medal (1st Award) in July 1994.

4.  On 29 March 1995, court-martial charges were preferred against the applicant for two specifications of distribution of marijuana to military personnel.  An additional charge of drunk driving was preferred on 15 June 1995.

5.  On 5 September 1995, after consulting with counsel and being advised of his rights and options, the applicant submitted a 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, for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that he was guilty of the charges or lesser included charges and that if the request was accepted he could receive a discharge under other than honorable conditions.  He acknowledged such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  He also acknowledged that he was making this request of his own free will and have not been subjected to any coercion whatsoever by any person.

6.  The applicant's immediate and intermediate commander's recommended approval of his request with issuance of an under other than honorable conditions discharge.

7.  The separation authority subsequently approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200,
chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and given an under other than honorable conditions discharge.

8.  Accordingly, the applicant was discharged on 20 October 1995 with an under other than honorable conditions discharge.  He completed 4 years, 3 months, and 27 days of creditable active service.

9.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.

	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 under other than honorable conditions 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 Army did not have to prove the applicant's guilt; he acknowledged his guilt in his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10.

2.  The applicant's record shows he was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, in writing, and without coercion requested discharge from the Army for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his misconduct.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.

4.  In view of the foregoing, there is no basis for granting the applicant's request for either 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)                                         AR20110025199



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ABCMR Record of Proceedings (cont)                                         AR20110025199



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