IN THE CASE OF: 

		BOARD DATE:	    22 April 2014

		DOCKET NUMBER:  AR20130014210 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general under honorable conditions discharge.

2.  He states:

	a.  his discharge was inequitable because it was based on incidents that all stemmed from one event in 78 months of service.

	b.  he doesn't believe that during his discharge from the service his leadership considered his two prior honorable discharges and award of the Army Good Conduct Medal for his honorable and faithful service.

	c.  he was discharged in 1992 when the military was conducting subsequent drawdowns, which may have abetted in their decision.  

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a self-authored statement, a memorandum, three DD Forms 4 (Enlistment/Reenlistment Document), his DA Form 2-1 (Personnel Qualification Record - Part II), DA Form 3881 (Rights Warning Procedure/Waiver Certificate), FDCF Form 691A (Personnel Control Facility Interview Sheet), DA Form 4187 (Personnel Action), DD Form 458 (Charge Sheet), and Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 proceedings.  



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 29 January 1986, was assigned to Germany in June 1986, and he departed in December 1987.  He was promoted to specialist four on 15 December 1987.  He reenlisted on 2 September 1988 and 6 May 1991.  

3.  On 10 April 1992, charges were preferred against the applicant for being absent without leave (AWOL) from 14 to 23 December 1991 and from 1 January to 7 April 1992.

4.  On 10 April 1992, he consulted with legal counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  In doing so, he admitted guilt to the offenses charged and acknowledged he understood he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if a UOTHC discharge was issued to him.  He submitted statements in his own behalf.  He stated he was requesting an honorable discharge because he was a benefit to the Army, was a good Soldier for 5 years and 11 months prior to encountering emotional personal problems.  He went AWOL because of the loss of a loved one.  The problem put an emotional strain on him and he was too stubborn to go to his chain of command for counseling.  An honorable discharge will allow him to return to civilian society and benefit his community, receive a middle class job, and support his wife and kids.  AWOL was his biggest mistake and it changed his career.  He received several ribbons, was promoted to specialist four, had two prior honorable discharges, maintained an $80,000 handreceipt without losing any items, he was working in an E-5 slot as supply sergeant from behavioral science division, and he never had a Article 15 prior to his only one in December 1991 (company grade) when his problems started.
5.  On 13 October 1992, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He directed that the applicant be reduced to the lowest enlisted grade and given a UOTHC discharge.

6.  He was discharged on 24 November 1992 with a UOTHC discharge after completing a 1 year, 3 months, and 14 days of active military service during the period under review and a total of 6 years, 6 months and 21 days of creditable active service with 97 days of lost time.  His DD Form 214 shows award of the Army Achievement Medal (3rd Oak Leaf Cluster), Army Good Conduct Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

7.  He provided a self-authored statement in which he stated:

	a.  His conduct and efficiency rating/behavior and proficiency were good.  His record of promotions showed he was a good service member, he had two prior honorable discharges, and he received awards and decorations, including the Army Good Conduct Medal.

	b.  He has been a good citizen since his discharge; he made two big mistakes and he still regrets them today.

	c.  He was immature and should have gone to his command with his personal problems of dealing with the death of his family members, which caused him to be depressed and turn to drugs in December 1991.  He started getting depressed after his hand got smashed in a night move in Germany.  He had surgery and therapy then he realized he wouldn't be able to play baseball again.  

	d.  He lost three close people in his life and wasn't able to attend the funeral because his commander said they weren't immediate family.  He went AWOL for 108 days from the Army.

	e.  He has been clean from cocaine since 1993 and received a Certificate of Relief from the courts for possession of a controlled substance.  He reiterated his accomplishments in the Army as cited in his statement in support of his chapter 10 proceedings.

8.  He provided a memorandum, dated 6 August 2010, from the State of New York Unified Court System, Onondaga Supreme and County Courts which indicates he was arrested in February 1992 for three specifications of criminal possession of a controlled substance.  On 1 September 2009, he received a Certificate of Relief from Disabilities to relieve him of all disabilities and bars to employment, excluding his right to be eligible for public office.  

9.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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 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 UOTHC discharge is normally considered appropriate.

	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's contentions regarding his personal problems are acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the offense of AWOL which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  Although his service record shows he had two prior honorable discharges, his service record shows he was charged with being AWOL for a period of 97 days during the period under review.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.

4.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  The evidence of record further does not indicate the actions taken in his case were in error or unjust.  It appears the separation authority determined the applicant's overall service during his last enlistment did not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general discharge, and the applicant provides insufficient evidence/argument why it should be upgraded now.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130014210





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ABCMR Record of Proceedings (cont)                                         AR20130014210



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