IN THE CASE OF:	  

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130012372 


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, in effect, that after his mother was found to be HIV positive he was left with no other choice than to go absent without leave (AWOL) in order to find someone to care for his 11-year old brother.  His chain of command was aware of his situation and initially recommended he receive an honorable discharge but changed the characterization to an other than honorable discharge after he went AWOL.

3.  The applicant provides no additional evidence.

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 on 14 February 1996.  He failed to complete his training for military occupational specialty (MOS) 31L (Wire Systems Installer).

3.  Item 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record) shows he was AWOL from 23-27 December 1996.

4.  On 18 January 1997, after consulting with legal counsel, he voluntarily requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Federal and State veterans benefits.

5.  He acknowledged that he understood he could request a discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct.  This document shows he was charged with Article 86, AWOL and Article 112a, wrongful use or possession of a controlled substance.  He further acknowledged:

* he was guilty of the charge against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation as he had no desire to perform further military service
* he understood he could be discharged under other than honorable conditions as a result of his request
* he had been advised of and understood the possible effects of an under other than honorable conditions discharge 
* as the result of such a discharge, he would be deprived of many or all Department of Veterans Affairs
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

6.  He indicated that he did not intend to submit statements in his own behalf.

7.   The available evidence shows his chain of command recommended he be discharged for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge.

8.  On 19 February 1997, the appropriate authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge, and reduction to pay grade E-1.

9.  On 28 February 1997, he was discharged accordingly.  His DD Form 214 shows he completed 1 year and 12 days of total active service with lost time for the period 23 - 27 December 1996 (5 days).

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment under the UCMJ includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct an honorable or a general discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

	a.  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.

   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 requests upgrade of his discharge under other than honorable conditions.



2.  The evidence of record confirms he was charged with the commission of two offenses punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

3.  The applicant contends he went AWOL after his mother became ill and only to find someone to care for his young brother; however, there is no substantiating evidence.  The applicant has failed to provide evidence to show that going AWOL was the only solution to resolving his personal difficulty.  Further, one of the charges was for the wrongful use or possession of a controlled substance.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  In view of the foregoing, his 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)                                         AR20130012372





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130012372



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1