IN THE CASE OF:	  

		BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120012725 


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 an honorable discharge.

2.  He states:

   a.  His problem started during basic training in 1995.  His girlfriend, who is the mother of his child, started calling his unit and saying he wasn’t sending her child support.  He had actually submitted allotment paperwork for her to receive $200.00 per month.  It took a while for the Army to start sending her the money.  Meanwhile, she kept calling and complaining that she didn’t have any money.  As a result, his drill sergeant started yelling at him more and making him do extra duty which lasted up until graduation.  

   b.  His girlfriend called him and asked him to get out of the Army and come home.  He went home and did everything he could to get her back.  He was home for several months before the military police picked him up.  He was so confused at that point, so he accepted the discharge in order to get his girlfriend and child back.  He and his girlfriend did not get married; however, they have a good relationship and raised their daughter together.  

   c.  He served honorably in the Army National Guard (ARNG) and U.S. Army Reserve (USAR).  He is now a mature adult and knows that the character of his discharge hurts him from getting a good paying job.  He doesn’t want to be punished for the rest of his life for a youthful mistake.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 17 April 1997
* 2006 National Guard Bureau Form 22 (Report of Separation and Record of Service) and Honorable Discharge Certificate
* 2007 DD Form 285 (Appointment of Military Postal Clerk, Unit Mail Clerks, or Mail Orderly)
* 2007 Certificate of Achievement
* 2008 DA Form 638 (Recommendation for Award) and Amy Achievement Medal Certificate
* 2011 USAR discharge orders
* five character letters

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’s military record shows he enlisted in the Regular Army (RA), in pay grade E-1 on 21 November 1995, for 4 years.  At the time of his enlistment, he was almost 24 years of age.  He did not complete advanced individual training for award of a military occupational specialty.  

3.  On 16 December 1996, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  The applicant was charged with two specifications of being absent without leave (AWOL) from 8 April to 2 August 1996 and from 6 August to 8 December 1996.

4.  On 16 December 1996, after consulting with counsel, he voluntarily requested to be discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10. He acknowledged that he could be discharged UOTHC.  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 24 February 1997, the separation authority approved the applicant’s request and directed his reduction to pay grade E-1 and the issuance of a UOTHC discharge.

6.  He was discharged in pay grade E-1 on 17 April 1997, under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial.  His service was characterized as UOTHC.  He was credited with completing 8 months and 27 days of net active service and 240 days of time lost.  His DD Form 214 does not list any awards.

7.  He enlisted in the Alabama ARNG on 21 June 2004.  He was honorably discharged on 16 November 2006 and was transferred to the USAR Control Group (Annual Training).  He was honorably discharged from the USAR on 22 November 2011.

8.  He provided five character letters wherein the individuals stated their support of his request for an upgrade of his discharge.  The individuals also attested to the applicant being a good father and an organized and competent person.

9.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC was normally considered appropriate.

   b.  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.

	c.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with two specifications of being AWOL totaling 240 days.  On 16 December 1996, he voluntarily requested discharge for the good of the service in lieu of court-martial. He acknowledged he could be discharged UOTHC.  He also waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  

2.  His contention that his youth made him do the wrong thing and impacted his ability to serve successfully is without merit.  However, at the time of his enlistment he was 8 days shy of 24 years of age.  He was 24 years of age when he departed AWOL.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

3.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and he also has not provided evidence sufficient to mitigate the character of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  His misconduct diminished the quality of his service below that meriting a general or an honorable discharge.

4.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is believed that the reason for discharge and the characterization of service were both proper and equitable.  Therefore, 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)                                         AR20120012725





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ABCMR Record of Proceedings (cont)                                         AR20120012725



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