IN THE CASE OF:	   

		BOARD DATE:	  26 February 2014

		DOCKET NUMBER:  AR20130010036 


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 a general discharge.

2.  The applicant states:

* his substance abuse and prior honorable service in the Army National Guard (ARNG) were not taken into account
* he wants his discharge upgraded so he can receive Department of Veterans Affairs (VA) benefits and better employment opportunities
* he was young and immature

3.  The applicant provides:

* résumé
* residency verification

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 was born on 1 August 1962.  He enlisted in the ARNG on 
7 February 1981 and he was honorably discharged from the ARNG on 
6 February 1984.  He was transferred to the U.S. Army Control Group (Annual Training).  On 6 February 1987, he was honorably discharged from the Ready Reserve.  

3.  At age 29, he enlisted in the Regular Army (RA) on 15 October 1991 for a period of 4 years.  He completed his training and was awarded military occupational specialty 55B (ammunition specialist).   

4.  A bar to reenlistment was imposed against him on 18 May 1992.

5.  He went absent without leave (AWOL) on 17 August 1992.  He was apprehended by civil authorities on 4 October 1992 for a civilian charge (bad check).  He was confined pending disposition of the charge.  He returned to military control on 24 November 1992.  On 3 December 1992, charges were preferred against him for the AWOL period.  

6.  On 3 December 1992, he consulted with counsel and 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.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and given an under other than honorable discharge, he might be ineligible for many or all benefits administered by the VA, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf. 

7.  On 20 January 1993, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.



8.  On 16 February 1993, he was discharged under the provisions of chapter 
10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 1 year and 25 days of creditable active service with 99 days of lost time.  

9.  There is no evidence which shows he was diagnosed with substance abuse or dependency prior to his discharge.

10.  He provides documentation, dated 8 February 2013, from the Financial Director of Safe Step Communities which states the applicant enrolled in a housing program setting for individuals with a history of addiction in January 2013.  He is required to attend weekly Alcoholics Anonymous/Narcotics Anonymous meetings, out-patient counseling, and a weekly meeting and lectures.  He is also subject to random drug and alcohol screenings. 

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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 3-7b 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 he was young and immature and he had a substance abuse problem.  However, age is not a sufficiently mitigating factor.  He was 
29 years old when he enlisted in the RA.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  In addition, there is no evidence and he provides no evidence which shows he was diagnosed with substance abuse or dependency prior to his discharge.  Even so, substance abuse could not have been used as a mitigating circumstance to excuse his AWOL.

2.  He wants his discharge upgraded so he can obtain VA benefits.  However, a discharge is not changed for the purpose of obtaining VA benefits.

3.  He also wants better employment.  However, discharges are not upgraded for the purpose of enhancing employment opportunities.

4.  His prior honorable service in the ARNG was noted.  However, his record of service included a 99-day AWOL period.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

5.  His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

6.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130010036





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ABCMR Record of Proceedings (cont)                                         AR20130010036



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