IN THE CASE OF:	  

		BOARD DATE:	  18 March 2014

		DOCKET NUMBER:  AR20130012672 


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.

2.  The applicant states:

   a.  He lacked maturity and knowledge of the Uniform Code of Military Justice (UCMJ) system to rationally request a discharge from the Army in lieu of trial by court-martial.
   
   b.  He performed in an outstanding manner, received commendatory awards, and completed an initial period of honorable service,
   
   c.  His son was critically ill and he expected to receive approval of his request for an extension of his 30 days of leave.  He figured he was let down by his chain of command when his request for an extension was denied twice.
   
   d.  He did not make a statement on his own behalf because he did not think it would matter.  He did not understand he could receive an honorable discharge (HD) or general discharge (GD) considering the charges against him at that time, and he feared going to prison.
   
   e.  Since being discharged he has done everything within his ability to reform his character, he is a God-fearing Christian trying to avoid getting into the situation that dictated the court-martial action in the first place.
   
3.  The applicant provides:

* Two Self-Authored Statements
* Army Review Boards Agency Letter
* Three Letters of Support
* Army Discharge Review Board (ADRB) Letter and Decisional 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's military records show he initially enlisted in the Regular Army on 7 June 1982 and continued to serve until he was honorably discharged on 
14 May 1985 for the purpose of immediate reenlistment.  He held the rank of specialist four/E-4 and completed 2 years, 11 months, and 8 days of creditable active duty service.

3.  On 15 May 1985, the applicant reenlisted.  He held and served in military occupational specialty 54B (Chemical Operations Specialist).

4.  On 19 October 1987, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for being absent without leave (AWOL) from on or about 8 June – 8 October 1987.

5.  On 19 October 1987, the applicant acknowledged the charge preferred against him for violating Article 86 of the UCMJ.  Having consulted with legal counsel and having been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

6.  In his request for discharge he acknowledged he understood that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that he understood he could face substantial prejudice in civilian life because of a UOTHC discharge.  He further elected not to submit a statement in his own behalf.

7.  On 26 October 1987, after having considered the applicant's request, the separation authority approved his request and directed that he receive a UOTHC discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

8.  On 15 December 1987, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 5 years, 2 months, and 9 days of total active service, of which 122 days was time lost.  It also shows he earned the following awards:

* Army Achievement Medal (2nd Award)
* Army Good Conduct Medal
* Army Service Ribbon
* Expert Marksmanship Qualification Badge with M-16 Rifle and Hand Grenade Bars
* Drivers Badge

9.  On 1 November 2002, after having carefully reviewed the applicant’s record and the issues he presented, the ADRB concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

10.  The applicant provides three letters from individuals who support his claim for an upgrade of his UOTHC discharge.  These individuals indicate the applicant:

* exhibited leadership and personal characteristics at a young age that would one day distinguish him from his peers
* has always been a loyal, trustworthy, and dependable friend
* gives selflessly to help others
* demonstrates a positive attitude about life and a commitment to his faith


11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides, in 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 HD or GD is authorized, a UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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 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 because he was immature, did not have knowledge of the UCMJ system, and because of his post-service conduct.  While his post-service conduct is noted, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL 122 days.  The Army would never have extended his 30-day leave an additional 90 days.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His service did not support a GD or an HD at the time of his discharge, nor would it be appropriate to upgrade his discharge now.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.
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)                                         AR20130012672



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ABCMR Record of Proceedings (cont)                                         AR20130012672



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