IN THE CASE OF:	  

		BOARD DATE:  19 February 2014

		DOCKET NUMBER:  AR20130009258 


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 (UOTHC) discharge.

2.  The applicant states he "Soldiered" to the best of his ability but he and other Soldiers in his unit received harsh and unusual treatment from his first sergeant that other Soldiers in the battalion did not receive from their leadership.  The ongoing demands of the service with limited recovery time with the family resulted in family issues arising.  This treatment was constant throughout his career, which ultimately lead to his extreme mental and emotional stress and depression.  After going absent without leave (AWOL) and returning to his unit he was given the option to return to his unit or take an UOTHC discharge, which he was under the impression was equivalent to a general discharge that he could have upgraded.  He believes he is deserving of an upgrade to his discharge.

3.  The applicant provides:

* personal statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two letters of support
* wage inquiry printout
* verification of residency


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 28 August 1984, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 19E (M48-M60 Armor Crewman).  The highest rank he held was private first class/E-3.

3.  On 23 April 1986, he accepted nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty.

4.  A DD Form 458 (Charge Sheet) shows that on 15 October 1986 he was charged with being AWOL from the U.S. Army Personnel Control Facility, Fort Knox from 22 July 1986 to 7 October 1986.  

5.  On 16 October 1986, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment under the Uniform Code of Military Justice (UCMJ), of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.  

6.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  

	a.  He indicated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that by submitting a request for discharge he was acknowledging he was guilty of the charge against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge. 

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished a UOTHC discharge.  He acknowledged he had been advised of and understood the possible effects of a UOTHC discharge and that, as the result of the issuance of such a discharge he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.

	f.  He waived his rights.  He elected not to provide a statement in his own behalf. 

7.  On 17 October 1986, his chain of command recommended he be given a UOTHC discharge.

8.  On 21 October 1986, the separation authority approved his request to be discharged for the good of the service.

9.  On 13 November 1986, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in accordance with the separation authority's decision.  The DD Form 214 issued at that time shows his service was characterized as UOTHC.  It also shows he completed 2 years and 1 day of total creditable active military service with time lost from 22 July to 6 October 1986.
  
10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  He provides two letters of support.  One letter indicates he participated in community service activities and exercised respect for authority and commitment to excellence.  The other letter stated in the short time the author of the letter had known the applicant he had demonstrated his commitment to his sobriety and being a better citizen.

12.  Army Regulation 635-200 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.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

	c.  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 applicant's contentions and letters of support were carefully considered.  However, the available evidence does not support upgrade of his UOTHC discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  In view of the foregoing, there is no basis for granting the applicant a general discharge or an honorable 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)                                         AR20130009258



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ABCMR Record of Proceedings (cont)                                         AR20130009258



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