BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130015838 


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 he was absent without leave (AWOL) due to State-side family problems, his wife was using crack cocaine.  The UOTHC was too harsh compared to his record prior to the point of his personal problems.  He was told that his discharge would be automatically upgraded after two years.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 on 23 July 1980 with a reenlistment on 22 July 1983.  He was promoted to sergeant (E-5) in November 1984 and assigned to duty in Germany in 1985.

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on:

	a.  12 December 1985, for indecent (sexual) assault upon a female Soldier; and 

	b.  25 June 1986, for disobeying a lawful order from a commissioned officer by drinking during a field exercise.

4.  The applicant was AWOL from 1 June to 16 September 1986.  Upon his voluntary return to military control court-martial charges were preferred against him. 

5.  On 24 September 1986, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for 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).  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished a UOTHC Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.  He acknowledged that there was no automatic upgrading or automatic review of his discharge by any Governmental agency.  

6.  He submitted a personal statement indicating he was having family housing and relocation problems, pay problems following his Article 15, and was dealing with getting his stolen vehicle back.  He had been granted State-side leave but when he attempted to clarify his pay issues he was told he was AWOL and he panicked.

7.  The separation authority approved the request for discharge and directed the applicant be reduced to the lowest enlisted grade and be given a UOTHC discharge.

8.  The applicant was discharged UOTHC on 30 October 1986.  He completed 5 years, 11 months, and 22 days of creditable service with 107 days of lost time and 37 days of excess leave.  
9.  There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD. 

	c.  Paragraph 3-7c states that a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

   d.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge UOTHC is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation 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.  There is no indication that the request was made under coercion or duress.

2.  There is no merit to the applicant's contention that he was told that his discharge would be automatically upgraded at some point after his discharge.  There is not now nor has there ever been any provision in law or regulation that allowed for an automatic upgrade of any less than honorable discharge based solely on a period of lapsed time.

3.  The applicant's departures from acceptable conduct, as documented by his two NJP's and his extensive period of AWOL, negate his otherwise good service and he has not presented any evidence or argument to show his service during his second enlistment was so meritorious as to outweigh that misconduct. 
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)                                         AR20130015838





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ABCMR Record of Proceedings (cont)                                         AR20130015838



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