IN THE CASE OF:	  

		BOARD DATE:	    12 September 2013

		DOCKET NUMBER:  AR20130001639 


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states:

	a.  Ever since his discharge, he has wanted to address the level of discharge he received to the appropriate authorities.  His ultimate desire relative to his career goals was to retire honorably from the Armed Forces.  He began his career in the U.S. Marine Corps Reserve (USMCR) in July 1980 and successfully completed his tour of duty with an honorable discharge in 1984.  He was simultaneously a student matriculating at Cheyney University, Pennsylvania.  The university introduced an Army Reserve Officers' Training Corps (ROTC) Program into its curriculum.  It was an ideal opportunity for him to become an Army commissioned officer, having had that vision even as a high school student while serving as a cadet in the Navy Junior ROTC Program from 1977 to 1980, which enabled him to advance to pay grade E-3 in the USMCR after completion of boot camp.

	b.  He graduated from college – the first in his family – as class vice president in December 1986 and he was commissioned as a second lieutenant.  It had to have been one of the most memorable moments of his life.  Active duty orders soon followed and he began the Infantry Officer Basic Course at Fort Benning, GA, in March 1987.  He was grateful to have had the opportunity to fulfill his dreams.  Shortly after completing the course, his proceeding orders directed him to the 25th Infantry Division in Hawaii.  Once again, the dream duty station of a lifetime for him.  Not only was he appreciative of his accomplishments, but one of his greatest desires was to make his legal guardian proud of him as well.  She had raised his three brothers and him since 1973 after the tragic death of his only living parent, his mother.  He mentions this because he received word during his training that she had become terminally ill, as her diabetes had taken a turn for the worse.  Out of homage for her sacrifice, he thought it would be fitting to have his orders amended to remain stateside so he could be close to her, as she had relocated back to their birth place in St. Petersburg, FL.

	c.  It wasn't long after he settled in as a platoon leader for the 1st Battalion, 9th Infantry Regiment, at Fort Benning, that he received notification of her passing.  He was surprised how he reacted to her death.  It seemed all the tragedies of the past had surmounted to an extremely overbearing point.  Due to his inability to handle the grief and pain, he began self-medicating with the excessive use of alcohol and drugs.  Their use became progressive at an alarming rate.  The guilt and shame of his behavior led him to believe that the best course of action was for him to remove himself, thinking he could seek professional help outside the military.  He believed that once he had recovered, he could then make an effort to redeem himself.

	d.  Perhaps the military had solutions in place to assist him in resolving his issues, but his mind had been too clouded to see any clarity through the guilt and the shame he felt.  His desire is to still be of service, both to his country and his fellow servicemen, in the capacity of employment by the Department of Veterans Affairs (VA) Healthcare System.  It gives him joy to report that he is drug and alcohol free and currently enrolled at the local community college to be a drug and alcohol counselor.  He is a single parent with three children, ages 6, 7, 
and 16.  Even at the age of 50, if it were remotely possible for him to reenter the military he would most willingly and appreciatively sign on the dotted line.  When the military liaison initially brought the judgment of the discharge, he was still in a frame of mind that he could not defend himself from its ruling.  It is his understanding that there have been others who have gone through similar situations and have come to some form of closure by way of upgrading their individual discharges.  He only prays that his honesty and sincerity will be sufficient to overturn his discharge under other than honorable conditions to one that would allow him to remain in position and to receive employment through the VA Health Care System.

3.  The applicant provides his DD Form 214.


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 records show he was appointed as a Reserve commissioned officer of the Army on 11 May 1986 and entered active duty on 8 March 1987.  He was assigned to the 1st Battalion, 58th Infantry Regiment, Fort Benning, GA.

3.  On 2 September 1987, he was reprimanded by his commanding officer for failing to return from a pass that was authorized pursuant to receipt of a Red Cross message conveying a death in the family, being absent without leave (AWOL), and disobeying a lawful order.

4.  During September and October 1987, he was frequently counseled by members of his chain of command for various infractions including:

* multiple instances of missing formation 
* multiple instances of missing physical training
* being unshaven during formation
* being AWOL from 2 to 5 October 1987
* failing to attend recall formation
* failing to attend an Article 15 hearing of one of his Soldiers
* failing to be available when one of his Soldiers attempted suicide
* missing movement
* failing to participate in training
* having an extensive record of dishonored checks and failing to pay debts

5.  On 30 September 1987, he was temporarily relieved from his duties as a platoon leader due to his continued misconduct.

6.  On 2 October 1987, he was reported as AWOL and he was dropped from the Army rolls as a deserter on 1 November 1987.

7.  On 5 October 1987, the applicant's immediate commander initiated a recommendation to eliminate him from the Army by reason of misconduct.

8.  On 5 November 1987, court-martial charges were preferred against the applicant for one specification of being AWOL from 2 October 1987 to an unspecified date.

9.  On 8 November 1988, he was apprehended by civil authorities in St. Petersburg, FL, and he returned to military control on the same date.  He was assigned to the Personnel Control Facility, Fort Knox, KY, for administration and legal action.

10.  On 22 March 1991, the applicant consulted with legal counsel and he was advised of the basis for the contemplated action to eliminate him from the Army.  He requested voluntary resignation from the Army in lieu of elimination under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), chapter 4.  He further waived his right to appear before a board of officers or to submit matters in explanation, rebuttal, or defense of the allegations in his case.  He acknowledged he understood:

* if his resignation were accepted under other than honorable conditions, he would not be entitled to compensation for unused leave
* he would be barred from all rights under any laws administered by the VA based on the period of service from which he would be separated
* if his discharge request were approved, he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the VA

11.  On 29 July 1991, the U.S. Total Army Personnel Command (now known as the U.S. Army Human Resources Command) approved the applicant's resignation in lieu of elimination for misconduct, moral or professional dereliction, under the provisions of Army Regulation 635-120 and directed the issuance of orders effecting his discharge under other than honorable conditions by order of the Secretary of the Army.

12.  On 8 August 1991, Headquarters, 3rd Brigade, 24th Infantry Division, Fort Benning, GA, directed his discharge from the Army effective 13 August 1991.

13.  He was discharged under other than honorable conditions on 13 August 1991.  His DD Form 214 shows he was discharged in lieu of or as a result of elimination proceedings under the provisions of Army Regulation 635-120, chapter 4.  He completed 1 year, 7 months, and 14 days of creditable active service with lost time from 2 October to 1 November 1987 and from 22 November 1988 to 13 August 1991.

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-120 implements the statutory provisions of Title 10, U.S. Code, governing officer separations and provides policies and procedures for separating officers from active duty.  Chapter 4 prescribes procedures to eliminate officers from the Army for substandard performance of duty.  It states that officers whose performance of duty which has fallen below standards prescribed by the Secretary of the Army may be separated.  The existence of apathy, defective attitudes, or other character disorders, to include inability or unwillingness to expend effort, unless successfully rebutted, authorizes elimination of an officer due to substandard performance of duty.  Commanders will ensure that there is no element of coercion in connection with a resignation in lieu of elimination.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to general under honorable conditions.

2.  The applicant's records reveal an extensive history of misconduct ranging from missing formation to a reprimand, AWOL, and being dropped from the Army rolls as a deserter.  Accordingly, his chain of command initiated elimination action against him.  He requested voluntary resignation in lieu of elimination.  He waived his right to appear before a board of officers or to submit matters in explanation, rebuttal, or defense of the allegations in his case.  By order of the Secretary of the Army, he was discharged by reason of misconduct, moral or professional dereliction, with an under other than honorable conditions character of service.

3.  In the absence of evidence to the contrary, all requirements of law and regulation appear to have been met and his rights were presumably fully protected throughout the separation process.  Notwithstanding his explanation of the events leading to his misconduct his discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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 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)                                         AR20130001639



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130001639



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1