BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120014726


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, in effect, an upgrade of his discharge under other than honorable conditions (UOTHC) to a general, under honorable conditions discharge (GD).

2.  The applicant states:

	a.  while stationed in Honduras, a completed investigation determined there was insufficient evidence to uphold the charges against him;

   b.  although his commander ordered him not to leave the installation, he proceeded off the installation because the charges against him were dropped;
   
   c.  his attorney advised him that although his charges were dismissed, he was to obey the order given him not to leave the base until instructed otherwise;
   
   d.  he was advised to accept a chapter 10 discharge because a trial by court-martial presented the possibility of his incarceration;
   
   e.  he was not aware of the blemish on his record caused by the UOTHC discharge imposed; and
   
   f.  his UOTHC discharge should be upgraded because the charges against him were dismissed.
   

3.  The applicant provides a self-authored statement and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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      24 March 1983.  He was trained in military occupational specialty 92A (Automated Logistical Specialist/Transition).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to the rank of sergeant/E-5 on 1 August 1989.  It also shows he was assigned for duty in Honduras on 23 April 1993.

4.  On 22 April 1994, a DA Form 458 (Charge Sheet) was completed preferring court-martial charges against the applicant for violating the following Articles of the Uniform Code of Military Justice (UCMJ) on the dates indicated:

* Article 128 (two specifications) – for committing an assault upon another person by pushing her down the stairs on 23 December 1993 and for grabbing an individual by the neck and striking her in the face with his fist on 23 March 1994

* Article 129 – for unlawfully breaking and entering the dwelling house of another person with the intent to commit an assault therein on 23 March 1994

* Article 134 – for breaking restriction on 26 March 1994


5.  On 9 May 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 discharge UOTHC, and the procedures and rights available to him.  He acknowledged he understood that at least one of the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. 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 discharge UOTHC.  He elected not to submit a statement in his own behalf with his request.

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

8.  On 9 June 1994, the applicant was discharged UOTHC in lieu of trial by court martial.  His DD Form 214 shows he completed 11 years, 2 months, and 16 days of active military service.

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 discharge UOTHC is normally considered appropriate.

	b.  Paragraph 3-7b of 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 discharge UOTHC should be upgraded because some of the charges against him were dismissed.  There is insufficient evidence to corroborate his claim.

2.   The evidence of record shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge for twice committing an assault against another person, unlawful breaking and entering into another person's dwelling place with the intent to commit an assault, and for breaking restriction between 23 December 1993 and 26 March 1994.  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 separation 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 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)                                         AR20120014726





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ABCMR Record of Proceedings (cont)                                         AR20120014726



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