IN THE CASE OF:	  

		BOARD DATE:	  14 August 2012

		DOCKET NUMBER:  AR20120003229 


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.

2.  The applicant states he was young at the time and got mixed up with the wrong crowd of people.  He goes on to state he enjoyed his time in the Army and learned a lot and he wants his discharge upgraded so that he can better take care of his family.  He also states since his discharge he has been involved with his community and church.

3.  The applicant provides:

* a self-authored letter explaining his application, dated 7 February 2012
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter certifying he successfully completed a Veteran's Equity Transition Program, dated 2 November 2011, and corresponding certificate
* two third-party character reference letters

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 was born in August 1970 and he enlisted in the Regular Army on 15 September 1988 for a period of 2 years and training as a petroleum supply specialist.  He completed his basic training at Fort Knox, KY and his advanced individual training at Fort Lee, VA and was transferred to Camp Humphreys, Korea on 1 March 1989.

3.  On 31 October 1989, charges were preferred against the applicant for two charges and specifications of conspiring with five other Soldiers to assault two other Soldiers with a means and force likely to produce death or grievous bodily harm and for striking the Soldier with closed fist and shod feet, violations of Articles 128 and 134 of the Uniform Code of Military Justice (UCMJ).

4.  On 13 March 1990, after consulting with defense counsel, 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.  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 charges 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 further elected to submit a statement in his own behalf wherein he asserted he was a good Soldier and deserved better than a discharge under other than honorable conditions.

5.  The applicant’s commander indicated the applicant was an instigator of trouble within the unit and his conduct was not deserving of an honorable or a general discharge.

6.  On 23 March 1990, the separation authority (a brigadier general) approved his request for discharge under the provisions of Army Regulation 635-200,
chapter 10, and directed the applicant be discharged with an Under Other Than honorable Conditions Discharge.


7.  Accordingly, on 4 April 1990, he was discharged with an under other than honorable conditions discharge.  He completed 1 year, 6 months, and 20 days of active service.

8.  On 10 December 1995, while incarcerated by the Illinois Department of Corrections, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended that his discharge was inequitable because it was based on one incident.  On 24 February 1997, after considering all of the facts and circumstances of his case, the ADRB determined his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.

9.  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 charges against him.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his misconduct and his undistinguished record of service. Therefore, his service simply does not rise to the level of an honorable or a general discharge.

4.  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)                                         AR20120003229



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ABCMR Record of Proceedings (cont)                                         AR20120003229



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