IN THE CASE OF: BOARD DATE: 15 September 2011 DOCKET NUMBER: AR20110005511 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 discharge be upgraded to a general under honorable conditions or an honorable discharge. 2. The applicant states, in effect, he served honorably for eleven years achieving the rank of sergeant first class without incident. His one infraction occurred in Germany and he feels if it had occurred in the United States, he may have received more legal representation which may have changed the outcome of his discharge. 3. The applicant provides: * three character references * three certificates of promotion * three honorable discharge certificates * four letters of congratulations, appreciation, or commendation * three service school evaluation reports * five evaluation reports * an Army Achievement Medal Certificate * an Army Commendation Medal Certificate * an Army Good Conduct Medal Certificate * promotion orders from sergeant to staff sergeant 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 27 December 1979. His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic). The highest rank/grade he attained while serving on active duty was sergeant first class (SFC)/E-7. However, at the time of his discharge he held the rank/grade of private (PVT)/E-1. 3. The complete facts and circumstances of the applicant’s discharge are not available for review in this case; however, his records show charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for violation of Article 112a (Wrongful use, possession, manufacture, distribution, import, export, or introduction of a controlled substance). 4. On 23 October 1992, 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 under other than honorable conditions, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. The applicant chose to submit a statement on his own behalf; however, this statement is not contained in the applicant’s record. 5. In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 6. On 6 November 1992, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 4 December 1992 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions. 7. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 8. The applicant provides three third-party letters supporting his request. These individuals attest to his good character and excellent service conduct prior to the incident. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 discharge under other than honorable conditions is normally considered appropriate. 10. Army Regulation 635-200, 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. 11. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his under other than honorable conditions discharge should be upgraded was carefully considered; however, it was determined there is insufficient evidence to support his request. 2. The applicant's record is void of the specific facts and circumstances surrounding his discharge. It appears he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. 3. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service. 4. Although noteworthy, prior-service conduct alone is not a basis for upgrading a discharge. 5. Based on his record of indiscipline, the applicant's service did not meet the standard of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. Therefore, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge to either an honorable or a general discharge. 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) AR20110005511 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110005511 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1