IN THE CASE OF:	  

		BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130011145 


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 (UOTHC) discharge to a general, under honorable conditions discharge (GD).

2.  The applicant states:

   a.  upon completion of his initial entry training, he married the love of his life and was reassigned to Germany;
   
   b.  after securing a place for them to live, he returned home on leave to bring back his new wife, when he found her with another man;
   
   c.  he returned to Germany alone 3 days later completely destroyed;
   
   d.  he went off the deep end, started doing drugs, drinking, and abused drugs;
   
   e.  he was home again on leave to finalize his divorce when he learned his wife had moved in with another which resulted in him departing absent without leave (AWOL) for 30 days;
   
   f.  he received an Article 15 upon his return to Germany, made a mess of his life, and gradually began to abuse drugs;
   
   g.  when he could not find new needles, he began to clean and use an old one to inject himself with heroin resulting in his contraction of Hepatitis-C, a 
2-month hospitalization, 50-pound weight loss, and ultimate discharge;
   
   h.  he is now 7 years clean, actively involved in church, leads a recovery group, has a great marriage of 28 years, and 3 children who love and respect him; and
   
   i.  due to his past choices, his health is disintegrating, he is in need of surgery, and humbly asks for a GD.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-Authored Statement
* 9 Character Reference Statements
* West Chester/Liberty Township Faith Alliance Internet Document

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 enlisted in the Regular Army (RA) on 17 October 1979. His record shows he was trained in and awarded military occupational specialty 16T (Patriot Missile Crewmember).

3.  Item 21 (Time Lost – Section 972 Title 10, U.S.C.) of his DA Form 2-1 (Personnel Qualification Record) shows he was reported AWOL from 27 May – 5 June 1980.  His record shows he was administered non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions for violating the following Articles:

* 23 January 1980, Article 134 (wrongful possession of a quantity of marijuana)
* 13 February 1980, Article 86 (failing to go to his appointed place of duty (company wing guard))
* 11 June 1980, Article 86 (for being AWOL from 27 May – 6 June 1980)
* 2 September 1980, Article 134 (wrongful possession of 0.4 grams, more or less, of marijuana)

4.  The applicant's Army Military Human Resource Record (previously known as the Official Military Personnel File) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214 that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), in lieu of trial by court-martial.

5.  The applicant's DD Form 214 also shows he was discharged on 26 January 1981, with a UOTHC characterization of service after completing a total 1 year and 3 months of creditable active military service, of which he accrued 10 days lost time.

6.  The applicant provides nine character references from individuals who support his request for a discharge upgrade and indicate he:

* is a devoted, caring, and gentle servant to others and God
* takes responsibility for his actions and is truly a life transformed 
* has a rare and valuable gift in helping others
* is a leader in the Celebrate Recovery Ministry
* is wise, compassionate, and totally committed to Jesus
* a hard worker and provider for his family
* sets a good example by displaying a positive attitude in all circumstances
* is a man of integrity and moral character

7.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

8.  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 discharge (HD) or GD is authorized, a UOTHC discharge is normally considered appropriate.

   b.  Paragraph 3-7b provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded.  There is insufficient evidence to support this claim.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service and that he received a UOTHC discharge.  This separation document carries with it a presumption of government regularity in the separation process.

3.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  He would have voluntarily requested separation from the Army in lieu of trial by court-martial and procedurally he was required to consult with defense counsel.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.

4.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.


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)                                         AR20130011145





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ABCMR Record of Proceedings (cont)                                         AR20130011145



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