IN THE CASE OF:	  

		BOARD DATE:	  5 December 2013

		DOCKET NUMBER:  AR20130007266 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  The applicant states his first tour of active duty was from 1978 to 1985.  He served with great honor and distinction and received two awards of the Army Good Conduct Medal.  He also had many evaluation reports that highly rated his performance of duty.  His second tour of duty was from 1989 to 1990, for which he received a UOTHC characterization of service.  He requests the Board to consider upgrading his second discharge to honorable.  He contends that because he did not have a defined form of supervision, he lessened his standards.

3.  The applicant states that after leaving the Army he had many struggles due to the characterization of his service.  He will graduate from a junior college and continue his education at a university to be a counselor in human behavior and help people like himself to cope with the adversities of life.  He wants to make a difference to those who want it and for those who are not aware they need it.  Every man needs a second or third chance in life to make a difference in society, and he knows he can help others who need true enlightenment to their purpose and meaning.  He was young and inconsiderate of his peers.  Now, he is older and wiser.  He is a minister of God's word.  His life has changed tremendously.  That change is reflected in others.  He asks that his thoughts be considered.



4.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 13 August 1990
* Two letters of support dated in 2013

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 6 July 1978, the applicant, at 19 years and 3 months of age, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 31C (Single Channel Radio Operator).  He attained the rank of sergeant, pay grade E-5, and was awarded the Army Good Conduct Medal with a bronze clasp with two loops.

3.  On 12 May 1985, the applicant was discharged due to the expiration of his term of service (ETS).  He completed 6 years, 10 months, and 7 days of creditable active duty service characterized as honorable.  He enlisted in the U.S. Army Reserve (USAR).

4.  His DA Form 2-1 (Personnel Qualification Record - Part II) indicates that:

	a.  he was reduced to the rank of specialist four, pay grade E-4 effective 
12 November 1985;

	b.  on 12 December 1985, he was assigned to the 400th Military Police Prisoner of War Camp, located in Tallahassee, FL for duty as a compound assistant; and

	c.  on 16 June 1986, he was discharged due to ETS.

5.  On 27 April 1989, the applicant, at 30 years of age, again enlisted in the Regular Army, beginning in the rank of private, pay grade E-2.  He retained his same MOS.  He was subsequently assigned to the 611th Ordnance Company located in the Federal Republic of Germany.

6  On 27 April 1990, the following charges were preferred against him under the Uniform Code of Military Justice:

	a.  Charge I: violation of Article 86 (Failure to repair) for failing to go to his appointed place of duty on 17 April 1990; and

	b.  Charge II: violation of Article 131 (Perjury) for willfully, corruptly, and contrary to the oath he took to testify truly, testified falsely in substance that he did not see another Soldier punch a third Soldier in the face.

7.  On or about 19 July 1990, 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 UOTHC discharge, and of the procedures and rights that were available to him.

8.  In his request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him, or to 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 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.

9.  On 23 July 1990, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 794A (Certificate of Discharge Under Other Than Honorable Conditions).  On 13 August 1990, the applicant was discharged accordingly.  He had completed 1 year, 3 months, and 17 days of creditable active duty service during this period of active duty.

10.  On 10 November 1993, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge and determined that it was both proper and equitable.  The ADRB therefore denied the applicant's request for an upgrade.

11.  The two letters of support, provided by the applicant, essentially state that the applicant has demonstrated good character, has been motivated, responsible, and dependable throughout his stay in the VA Transitional Housing Program.  He has improved his vocational skills by pursuing college education and obtaining an Associate of Arts (AA) degree and has been accepted into a local university to pursue his Bachelor of Arts degree in sociology/psychology.  As a student at the Tallahassee Community College, he was always punctual and well prepared for class.  He conveyed utmost respect toward his instructor and colleagues.  Even though he was homeless and had nowhere to call home, he never gave up on his dreams and visions.  He maintained a positive outlook on life.

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 131, for perjury, is a dishonorable discharge and confinement for 5 years.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge UOTHC 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 (emphasis added), 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded to honorable because he was young and inconsiderate of his peers.  He argues that he has changed tremendously and is now older and wiser.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which 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's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was over 19 years of age when he enlisted in the Army in 1978.  He served honorably for more than 6 years and attained the rank of sergeant.  This shows he knew how to be a good Soldier and did it well enough to receive the Army Good Conduct Medal.  His satisfactory performance shows that he was neither too young nor immature to serve honorably.  The available evidence strongly shows that his subsequent period of active duty is characterized as UOTHC because he chose to perjure himself in a court of law.

4.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his misconduct during his military service.

5.  Based on his misconduct, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge to either honorable or general under honorable conditions.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130007266





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ABCMR Record of Proceedings (cont)                                         AR20130007266



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