IN THE CASE OF:
BOARD DATE: 24 April 2012
DOCKET NUMBER: AR20110020046
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 1996 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.
2. The applicant states:
a. The circumstances surrounding his discharge are unjust. He blames no one for his uncharacteristic behavior. As he entered his 20th year of enlistment he allowed emotional stress and depression to take over his ability to make a rational decision. He really did not understood what was taking place during that period.
b. He received additional treatment after he was discharged and in retrospect he realized that things could have been done differently. He requested and received a compassionate reassignment after his step-father was diagnosed with a terminal illness. Shortly after being reassigned, he was advised that two of his sisters were also terminally ill (with bone disease). Both were in their early thirties. His mother was also diagnosed with diabetes. All of these events began in 1993.
c. He was consumed with stress and concern for his family members and those problems only got worse as time went on. He was also going through a divorce at this time.
d. He was the noncommissioned officer in charge of the military occupational specialty (MOS) 31U (Signal Support Systems Specialist) night course at Fort Gordon, GA. He had exhausted his leave and felt he owed it to his unit to do his part. He was also working two part-time jobs to assist his family financially.
e. During this period one of his junior instructors was brought up on fraternization charges and he got involved with the investigation process. His father passed away and his sisters health was declining. Stress and fatigue caused him to testify that he saw an instructor in question at a location that would have made it impossible for him to commit the offense he was accused of.
f. After serving honorably for 19 years for the first time he had his superiors questioning his integrity. The stress and pressure became so great he started to make irrational decisions which led to substance abuse to which he became addicted. Military and civilian arrests followed. He did not receive treatment until he was court-martialed.
g. After completing his sentence he entered a 30-day treatment program and he was reassigned to his previous unit and platoon. The troops made him feel like an undesirable Soldier and his addiction resurfaced. He was later sentenced to civilian confinement.
h. During this time he requested more inpatient treatment and early retirement but both were denied. He does not blame anyone for his behavior but he does feel that he was not given a fair opportunity to recover. He never used drugs when on duty or on any military installation. Most importantly, he never offered drugs to other Soldiers. He has suffered professionally, emotionally, and socially with his UOTHC discharge. He would like to apologize to the members of his unit, the Army, and his only living family members, his two sons.
3. He provides:
* DD Form 214 (Report of Separation from Active Duty) ending on 22 August 1977
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 7 October 1996
* Recovery program completion certificate
* two Distinguished Achievement certificates (dated 2009 and 2010)
* 2010 Occupational Associate Degree certificate
* two reference letters
* An Affidavit from the Circuit and County Courts of the Eleventh Judicial Circuit of Florida
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military record shows he enlisted in the Delayed Entry Program on 10 December 1974. He enlisted in the Regular Army (RA), in pay grade E-1, on 7 January 1975. He completed training and was awarded MOS 31B (Field Radio Repairman). He was honorably discharged for the purpose of immediate reenlistment on 22 August 1977 and issued a DD Form 214.
3. He reenlisted in the RA on 23 August 1977. He served in:
* Iran from 23 October 1978 through 10 February 1979
* AMEA (Africa, Middle East and Asia region), Mt. Sinai from 16 March through 27 August 1982
* Germany from 3 March 1986 through 28 February 1988
4. He was promoted to pay grade E-6 on 4 February 1982.
5. On 28 April 1994, he was convicted by a special court-martial of one specification each of the following:
* stealing lawful currency in the amount of $399.00 from the Fort Jackson Army and Air Force Exchange Service (AAFES) on 18 December 1993
* absenting himself from his unit from 3 to 20 January 1994 until he was apprehended
* failing to obey a lawful order on 3 January 1994
* stealing lawful currency in the amount of $770.00 from Fort Gordon AAFES on 17 and 28 December 1993
* stealing a pair of earrings (of a value of approximately $23.00) from Fort Stewart AAFES
* stealing lawful currency in the amount of $125.00 from an individual on 24 December 1993
* wrongfully and unlawfully making and uttering a certain check upon the First Union Bank in the amount of $306.00 on 17 December 1993
* wrongfully and unlawfully making and uttering checks upon the First Union Bank in the amount of $100.00 on 20, 21, 22, 23, and 27 December 1993, and $70.00 on 28 December 1993
* wrongfully using cocaine on or between 1 and 9 March 1994
6. He was sentenced to a forfeiture of $500.00 pay for 6 months, confinement for 6 months, and reduction to pay grade E-1. The sentence was approved on
25 June 1994 and ordered executed.
7. On 16 August 1994, he requested early retirement as an exception to policy and restoration of pay grade E-4. On 7 October 1994, his request was disapproved. The memorandum stated
8. He was reported absent without leave (AWOL) on 8 November 1994 and dropped from the rolls of his organization on 7 December 1994.
9. On 5 August 1995, he was assigned to the Special Processing Company after being apprehended by civilian authorities on 3 February 1995 for civilian charges of the sale of a controlled substance and fraud.
10. On 21 August 1995, the Superior Court of Chatham County, GA, found him guilty and sentenced him to 5 years, restitution, and state probation.
11. On 24 October 1995, the applicants unit commander notified the applicant that he was being considered for discharge under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Separation), paragraph 14-5 (Conviction by a Civil Court). The unit commander advised the applicant of his rights.
12. On 6 November 1995, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action. He requested consideration of his case by an administrative separation board. He also acknowledged he understood he could be issued a UOTHC discharge and the results of the issuance of such a discharge. He elected not to submit a statement in his own behalf.
13. On 29 November 1995, the applicants battalion commander recommended the applicants separation under the provisions of Army Regulation 635-200, paragraph 14-5, with a UOTHC discharge.
14. On 9 January 1996, the applicant's request for a waiver was disapproved and his case was referred to an administrative separation board.
15. On 4 March 1996, the applicant and his counsel appeared before an administrative separation board. After carefully consideration of all the evidence the board recommended that the applicant be discharged for misconduct and issued a UOTHC discharge.
16. On 29 March 1996, the applicant requested retention and that he be allowed to remain on active duty for 6 months to retire. The applicant listed his cocaine addiction and emotional stress of his father's terminal illness and death. He also stated he had economic problems as a result of having to support his family, including his sisters.
17. On 2 May 1996, the applicant's senior commander recommended the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-5, due to misconduct, with a UOTHC discharge.
18. On 24 September 1996, the separation authority approved the applicants discharge prior to final action of his civil court appeal and directed the issuance of a UOTHC discharge.
19. On 7 October 1996, he was discharged under the provisions of Army Regulation 635-200, chapter 14, section II, for Misconduct in pay grade E-1. He was credited with completing 16 years, 9 months, and 6 days of net active service this period and 2 years, 7 months, and 16 days of prior active service. He also had lost time from 8 March through 4 August 1994 and from 8 November 1994 through 7 October 1996.
20. He provided two certificates, an Occupational Associate Degree for completion of air conditioning, heating, refrigeration, and appliance repairman. and a certificate for completing a recovery program in 2009. He also provided two character reference letters attesting that he took on a leadership role in mentoring younger men. He further provided a Circuit and County Courts of Florida affidavit which stated a diligent examination of the files and records failed to reveal a felony or misdemeanor pertaining to the applicant.
21. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
22. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A UOTHC discharge was normally appropriate. The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.
23. Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.
24. Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was convicted by a special court-martial of stealing currency on several occasions from three AAFES, stealing currency from an individual, being AWOL, uttering several bad checks, and using cocaine. In June 1994, he was sentenced to a forfeiture of pay, confinement, and reduction to pay grade E-1.
2. The evidence also shows in October 1994 his request for early retirement as an exception to policy was disapproved. On 8 November 1994, he was reported AWOL and dropped from the rolls on 7 December 1994. He was apprehended by civilian authorities on 3 February 1995 and charged with the sale of a controlled substance and fraud. He was found guilty and sentenced to 5 years, restitution, and state probation.
3. On 24 October 1995, he was notified by his commander he was being considered for discharge under the provisions of Army Regulation 635-200, paragraph 14-5, for conviction by a civil court. He elected to have his case heard by an administrative separation board.
4. On 4 March 1996, the board recommended he be discharged for misconduct and issued a UOTHC discharge. On 24 September 1996, the separation authority approved his discharge for misconduct with a UOTHC discharge. He was discharged accordingly on 7 October 1996.
5. The available evidence does not indicate the applicant had personal problems that contributed to his misconduct. Even if so, he had many other legitimate avenues through which to obtain assistance with his personal problems without committing the misconduct which led to the discharge action.
6. He provides insufficient evidence or a convincing argument to show his UOTHC discharge should be upgraded or evidence sufficient to mitigate his misconduct. His misconduct diminished the quality of his service below that meriting a general or a fully honorable discharge.
7. Based on the available evidence it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. He was properly discharged in accordance with pertinent regulations with due process.
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) AR20110020046
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ABCMR Record of Proceedings (cont) AR20110020046
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