BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120014506 


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).

2.  The applicant states his discharge was not right.

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's military record shows he enlisted in the Regular Army on 29 August 1990.  He was trained in military occupational specialty 94B (Food Service Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he completed a tour in Korea from 21 January 1991 through 20 January 1992.  It also shows he was promoted to the rank of private first class/E-3 on 28 April 1991.

4.  On 12 August 1994, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating the following Articles of the Uniform Code of Military Justice (UCMJ):

   a.  Article 86 - for being absent without leave (AWOL) and/or failing to report to his appointed place of duty on five separate occasions between 20 July and 10 August 1994;
   
   b.  Article 92 – for disobeying a lawful order given by his superior commissioned officer on three separate occasions between 8 and 9 August 1994; and
   
   c.  Article 134 – for wrongfully communicating a threat on 3 August 1994.

5.  On 16 August 1994, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and the procedures and rights available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UOTHC discharge.  He elected not to submit a statement in his own behalf with his request.

7.  On 24 August 1994, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the issuance of a UOTHC discharge.

8.  On 31 August 1994, the applicant was discharged for the good of the service in lieu of trial by court-martial with a UOTHC discharge.  His DD Form 214 shows he completed 3 years, 11 months, and 23 days of active military service with
9 days of lost time.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) 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.

	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 discharge (HD) or a general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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 GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL on five separate occasions, disobeying a lawful order twice, and communicating a threat.  After consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

3.  The applicant's administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.  His service clearly did not support an HD or a GD at the time of his discharge and it does not support an upgrade now.
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)                                         AR20120014506



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ABCMR Record of Proceedings (cont)                                         AR20120014506



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