BOARD DATE:  28 May 2015

		DOCKET NUMBER:  AR20140018281 


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 to an honorable discharge.

2.  The applicant states that since his discharge he has gone to college and received an associate degree in physical therapy and has no civilian criminal record.  He has had steady employment with Olive Garden and is taking care of two of his four children.  At his discharge he was told that if he did not run afoul of the law for three or more years he could apply for an upgrade of the discharge.

3.  The applicant provides copies of –

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* Associate Degree Certificate
* three character reference letters

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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, and 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 21 October 1997.  He held military occupational specialty 19K (M1 Armor Crewman).  

3.  On 17 May 1999, charges were preferred against him under the provisions of the Uniform Code of Military Justice (UCMJ) for several violations including:

* fleeing apprehension
* two specifications of making a false official statement
* wrongful use of marijuana
* two specifications of breaking restriction

4.  On 7 June 1999, 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 discharge under conditions other than honorable which would deprive him of many or all Army benefits, and he might be ineligible for veteran’s 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 an UOTHC discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He indicated he was advised he could submit a statement in his own behalf.  

5.  On 17 June 1999, the separation authority approved the discharge request and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

6.  On 29 June 1999, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  

7.  There is no evidence he requested that the Army Discharge Review Board upgrade his discharge within that board’s statute of limitations.

8.  The applicant provides character reference letters from:

	a.  Mr. M_____ B____, who states he is the applicant's boss and personal friend.  He further states the applicant is a great worker, always on time and even comes in on his days off.
	b.  Ms. T_____ R___, who states she is the applicant's fiancée and has known him for about eight years.  She indicates he is a great worker and a great provider for their children and a very well mannered man.  He is always there when she needs him and he has always been kind, caring, and considerate.

	c.  Mr. J____ S____, who states has known the applicant for over 20 years.  They went to school together.  He really appreciates that the applicant is a great  friend, father and they are so close they even call each other brothers.

9.  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 3-7a states 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 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 character reference letters he provided were reviewed; however, they are not sufficiently mitigating to warrant an upgrade of his discharge.  The applicant's claim of good post-service conduct is noted.  However, it does not sufficiently mitigate the misconduct that led to his discharge.

2.  His request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was appropriately characterized based on the nature of his offenses and the circumstances of his separation do not warrant an upgrade of his discharge to either an honorable or a general characterization of service.

3.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to either fully honorable or general.

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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20140018281



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