IN THE CASE OF:	  

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130009673 


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 under other than honorable conditions discharge. 

2.  The applicant states he feels he should have received a general discharge. He has changed his life around and progressed positively.  His troubles began when he reenlisted in August 1988 and he resorted to the use of alcohol and abuse of drugs.  His command was aware of his troubles and sent him to only one counseling session.  He never received any type of rehabilitation.  He was reduced to E-2 and from that point on, his career was on the decline.  He was not aware of what was going on in his life.  He was not thinking straight and he began missing muster.  He was reported in an absent without leave (AWOL) status from 6 December 1989 to 15 May 1994.  That is when his criminal record expanded.  This was all due to alcohol and drugs.  He feels his chain of command should have offered more counseling. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Pardon from the State of South Carolina
* Character reference letter from a command sergeant major (CSM)
* Support for pardon letter from an education coordinator
* Support for pardon letter from a probation officer
* Letter of support from a council member
* Self-authored character reference letter

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 enlisted in the Regular Army (RA) on 23 October 1985 and he held military occupational specialty 92Y (Unit Supply Specialist).   He served in Germany from on or about 3 March 1986 to on or about 19 October 1988.  He also reenlisted in the RA on 18 August 1988.

3.  He was awarded or authorized the Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and Driver and Mechanic Badge. 

4.  On 15 May 1989, he departed his Fort Bragg, NC, unit in an AWOL status; however, he returned to military control on 9 June 1989.  

5.  On 21 June 1989, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 15 May to 9 June 1989.  His punishment consisted of a suspended reduction to E-3, a forfeiture of pay, and extra duty and restriction. 

6.  On 14 July 1989, the suspension of the punishment to reduction, suspended, imposed on 21 June 1989, was vacated and ordered executed after the applicant had missed formation on 29 June and 14 July 1989. 

7.  On 13 April 1990, he again departed his unit in an AWOL status and on 13 May 1990, he was dropped from the rolls as a deserter.  He was apprehended by civil authorities in Sumter, SC, and returned to military control on 13 May 1994. 

8.  On 20 May 1994, court-martial charges were preferred against him for one specification of AWOL from 13 April 1990 to 13 May 1994. 
9.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge he indicated:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood that 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 Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

10.  The applicant's immediate and intermediate commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. 

11.  On 15 June 1994, the separation authority approved the discharge action and ordered the applicant reduced to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-1200, chapter 10, with an under other than honorable conditions discharge.  Accordingly, the applicant was discharged on 13 July 1994.

12.  His DD Form 214 shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 4 years, 6 months, and 26 days of active service (during this period) and he had 1,517 days of lost time. 


13.  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. 

14.  He provides:

	a.  A Certificate of Pardon, issued by the State of SC on 7 December 2012, pardoning the applicant and absolving him of the crimes and conviction for obtaining goods under false pretense, multiple offenses of drug possession, providing false information to police, fraud, receiving stolen goods, burglary, domestic violence, cocaine distribution, and several other crimes. 

	b.  A character reference letter from a CSM who opines that he has witnessed the changes the applicant has made and his continuous effort to better himself.  The CSM supports upgrading the applicant's character of service. 

	c.  Two letters of support, from an education coordinator and a probation officer, in relation to the applicant's pardon. 

	d.  A letter of support from a council member who also supports the discharge upgrade and opines the applicant is an asset to the community and has been an excellent role model. 

	e.  A self-authored character reference letter wherein the applicant chronicles his service and post-discharge achievements. 

15.  Army Regulation 635-200 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  The applicant was not discharged for a drug offense.  He was discharged for being AWOL from 13 April 1990 to 13 May 1994.  But even if his contention that his chain of command failed to provide him with counseling is true, going AWOL was not the proper way to address the issue.  There would have been several other legitimate avenues to address this issue had the applicant elected to use them.  

4.  Nothing in the applicant's records shows he was forced to go AWOL or choose the discharge.  He was AWOL by choice, and on more than one occasion.  After consulting with counsel, he clearly stated he was aware of the implications of his decision and that he had not been coerced.  He could have elected a trial by a court-martial if he felt he was innocent of the charges or if he had extenuating circumstances as he now describes. 

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to neither a general nor 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)                                         AR20130009673





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ABCMR Record of Proceedings (cont)                                         AR20130009673



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