IN THE CASE OF: 

		BOARD DATE: 25 April 2013

		DOCKET NUMBER:  AR20120018171 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.

2.  He states that he was 21 years old when he joined the Army and really rebellious.  He was raised by a single parent and lived in a very poor section of New York City.  If he could do it again he would have retired from the Army.  He even tried to reenlist but could not because of his reentry eligibility code.  Since his discharge he has 2 children and works for the city driving disabled and elderly people to various appointments.  He recently took the examination to become a New York City Corrections Officer and passed with a 94%.  He is 35 years old with a family and preparing to start a new career in law enforcement.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter showing his test results from the Correction Officer Examination.

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 23 June 1998.  He held military occupational specialty (MOS) 82C (Field Artillery Surveyor).  He was assigned to Fort Bragg, North Carolina, and progressed to specialist/E-4

3.  On 12 July 2001, charges were preferred against the applicant for being absent without leave (AWOL) from 28 March to 26 June 2001.

4.  He consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a UOTHC discharge, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Department of Veterans Affairs (VA).  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.

5.  The applicant's chain of command recommended approval of his voluntary request for discharge.  The separation authority approved the recommendation on 11 February 2002.  A character of service of UOTHC was directed.

6.  On 26 February 2002, the applicant was so discharged.  He completed 3 years, 5 months, and 7 days of net active service.  

7.  On 6 June 2003, the Army Discharge Review Board denied his request for a change in the character and/or reason for his discharge.

8.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7b states 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 request for a discharge under the provisions of chapter 10, Army Regulation 635-200, was proper, and shows he wished to avoid court-martial and the punitive discharge he might have received.  His service was properly characterized due to the nature of his offense (a lengthy AWOL).

2.  The type of discharge directed and the reasons were not inequitable and were appropriate considering all the facts of the case.  

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 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)                                         AR20100015867



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ABCMR Record of Proceedings (cont)                                         AR20120018171



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