BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20120021756 


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 under other than honorable conditions (UOTHC) discharge.  

2.  He states:

* he believes he did make some mistakes as a young Soldier, but his record is unjust because he thinks he was treated unfairly by his chain of command 
* the original trial by court-martial request was returned

3.  He provides no additional documents.

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 on 30 September 1963 and he enlisted in the Regular Army on 25 January 1985 at the age of 21 years old.  He was discharged on 12 November 1987 for immediate reenlistment.  He reenlisted on 13 November 1987 for a period of three years.

3.  His service record reveals a disciplinary history that includes:

	a.  his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on 23 June 1988 for operating a vehicle while drunk.

	b.  a letter of reprimand on 31 May 1988 for drunk driving.

   c.  a bar from reenlistment on 11 January 1990.

4.  On 20 February 1990, charges were preferred against him for the following offenses:

* disobeying a lawful command
* failing to obey a lawful order
* operating a vehicle while drunk (two specifications)
* wrongfully using marijuana
* stealing a pouch, of some value, the property of another Soldier
* breaking restriction

5.  On 28 February 1990, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person, guilty of the offenses charged, acknowledged that he might encounter substantial prejudice in civilian life, and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if a UOTHC discharge was issued.  He submitted statements in his own behalf; however, his statements are not available.

6.  On 15 March 1990, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  The separation authority directed the charges and specifications be withdrawn and dismissed and the applicant was issued a UOTHC discharge.

7.  On 29 March 1990, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  He completed 5 years, 2 months, 5 days of creditable active service.

8.  His service record is void of evidence which indicates he applied to the Army Discharge Review Board within its 15-year statute of limitations.  

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.  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 discharge UOTHC 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 service record is void of evidence which supports his contention that he was treated unfairly by his chain of command.

2.  His service record shows he received one Article 15, a letter of reprimand, and a bar to reenlistment during the period under review.  Records show he was 26 years of age at the time of his offenses.  However, there is no evidence that indicates that he was any less mature than other Soldiers of the same age who successfully completed military service.  


3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.  

4.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  It appears the separation authority properly determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general or fully honorable discharge.  

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120021756





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ABCMR Record of Proceedings (cont)                                         AR20120021756



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