IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120000292 


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 discharge to an honorable discharge.

2.  The applicant states that at the time he requested a discharge under
chapter 10 his wife had just been killed in a horrific car crash in Germany and he had to take his two daughters back to New York and then return to Germany.  He felt his daughters needed him the most.  He goes on to state that he chose a chapter 10 for the good of the service - in lieu of trial by court-martial for driving under the influence (DUI) because his wife had just died in an accident after his DUI and the Army ordered him to return his daughters to New York to his mother-in-law and he was terrified that she would try and take his daughters away from him, which she later tried to do.  He continues by stating that the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) reports will show the CID had at one point charged him with his wife’s death because they thought he was in the car with her; however, he was at home with his daughters.  He also states that all concerned treated his wife with dignity and he is thankful for that; however, he believes his 15 years of service of which 99% was served with distinction and with valor during Desert Storm deserves an upgrade. 

3.  The applicant provides no additional documents with his application.


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 5 October 1976 for a period of 4 years and training as a turbine engine repairman.  He completed his basic training at Fort Jackson, SC and his advanced individual training at Fort Eustis, VA.  He was transferred to Hawaii for his first duty assignment.

3.  He was advanced to the rank/grade of specialist four (SP4)/E-4 on 1 February 1978.  On 18 September 1978, nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against him for operating a motor vehicle while drunk.

4.  He remained on active duty through a series of continuous reenlistments and he was promoted to sergeant (SGT)/E-5 on 2 August 1983.

5.  All of the facts and circumstances surrounding his administrative discharge are not present in the available records, to include CID reports.  However, the available record shows that the applicant was transferred to Germany on an accompanied tour with his family on 22 March 1990.  He deployed to Southwest Asia from 17 September 1990 to 27 March 1991.  He was subsequently returned to Germany.  On 9 June 1991, charges were preferred against the applicant for the following offenses occurring on 25 May 1991:

* drunken driving
* involuntary manslaughter
* violation of a lawful general regulation

6. The applicant's spouse was killed in an automobile accident in Germany on
28 June 1991, while under the influence of alcohol.

7.  On 26 November 1991, after consulting with defense counsel, the applicant submitted a request for 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 indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charge against him or of a lesser-included offense which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement or explanation in his own behalf.

8.  On 3 December 1991 the applicant submitted a statement in his own behalf wherein he attempted to explain the circumstances of his accident and urge the convening authority to approve his request for discharge under chapter 10.

9.  After reviewing the applicant’s request for discharge and his case file, the appropriate authority (a lieutenant general) approved his request and directed the applicant be separated with an under other than honorable conditions discharge.

10.  Accordingly, he was discharged on 19 December 1991 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 15 years, 2 months, and 15 days of creditable active service.

11.  On 12 October 2004 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to fully honorable.  He stated that after returning from Saudi Arabia his wife had become an alcoholic and she could not handle life very well due to her problems and she spent much of her time with her friends to avoid her problems.  On the night of his accident he was on his way to pick her up and deal with the problems.  After the accident the situation became worse and she became more distressed and died in a car accident on 28 June 1991.  He further stated that after 6 months of investigation it was determined the accident was not his fault but he still faced charges of DUI and he and his lawyer agreed that submitting a request for a chapter 10 discharge would get him back to his daughters in New York who needed him more than his career.  He also stated he deserved an upgrade of his discharge for his 15 years of service.

12.  On 11 May 2005, after considering all of the available evidence, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request.

13.  Army Regulation 635-200 sets forth 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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 applicant's voluntary request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charge against him.

3.  The applicant's contentions have been noted; however, given the serious nature of the charges against him, his rank at the time and the fact that it was his second like offense, his service simply did not rise to the level of an honorable or a general discharge.
4.  While the loss of his spouse is regrettable, his misconduct occurred before her passing and his lack of judgment and DUI are not the conduct expected of a noncommissioned officer with 15 years of service.

5.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20120000292



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ABCMR Record of Proceedings (cont)                                         AR20120000292



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