IN THE CASE OF:	  

		BOARD DATE:	    26 November 2013

		DOCKET NUMBER:  AR20130006995 


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 upgrade of his under other than honorable conditions discharge to honorable.

2.  The applicant states, in hindsight, that he regrets not applying for this upgrade in 1995.  He served the U.S. Army with all he had.  His accomplishments in
four years speak for themselves.  Personally, he was going through a rough transition period after his divorce and subsequent loss of his daughter.  He makes no excuses.  He made some terrible choices, but as he looks back now, being clean and sober, he would probably still be [in] at 22 years and counting because he is still in great physical shape.  It has taken him this many years of life to mature and to learn to appreciate the small things in life.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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.  On 8 November 1990, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 75B (Personnel Administration Specialist).

3.  The applicant completed a tour of duty in Korea where he was advanced to the rank/grade of specialist (SPC)/E-4.  In April 1992, he returned to the United States for duty at Fort Campbell, KY.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was:

	a.  absent without leave (AWOL) from 20 to 26 June 1994 and

	b.  in civilian confinement from 27 June to 7 July 1994 and from 2 August to
2 September 1994.

5.  On or about 16 November 1994, the applicant went AWOL.

6.  On 18 January 1995, court-martial charges were preferred against him for violation of:

	a.  Article 86, AWOL, from on or about 16 November 1994 to a date to be determined;

	b.  Article 121, larceny, for stealing two blank personal checks from another Soldier;

	c.  Article 123, forgery (four specifications), for making and uttering certain checks knowing them to be false and that such use would be harmful to another person.

7. On 13 April 1995, the applicant appeared in civilian court wherein he was sentenced to 2 years probation, fined $1,000.00, and given credit for time served.  He was immediately returned to military control.


8.  On 21 April 1995, court-martial charges were preferred against the applicant for violation of Article 86, AWOL from on or about 15 November 1994 to on or about 13 April 1995.

9.  On 21 April 1995, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

10.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, 
for the good of the service – in lieu of trial by court-martial.

11.  He further acknowledged he understood that if his discharge request was 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

12.  On 19 May 1995, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the applicant be given an under other than honorable conditions discharge and be reduced to private (PV1)/E-1.

13.  On 14 June 1995, the applicant was discharged accordingly.  He completed 4 years and 20 days of creditable active service.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

15.  Army Regulation 635-200 (Personnel Separations) sets forth 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 discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

	c.  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.

16.  Under the UCMJ, the maximum punishment allowed for violation of
Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded to honorable because he served the U.S. Army with all he had.  He implies that his divorce and loss of his daughter at the time, as well as not being clean and sober, contributed to his misconduct.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant has not provided any documentary evidence or convincing argument showing his family situation and/or his drug and alcohol use were mitigating factors for his misconduct.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130006995



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ABCMR Record of Proceedings (cont)                                         AR20130006995



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