IN THE CASE OF:	  

		BOARD DATE:	    8 May 2014

		DOCKET NUMBER:  AR20130017089 


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 an honorable discharge (HD).

2.  The applicant states:

   a.  he departed absent without leave (AWOL) because he was going through a difficult divorce;
   
   b.  his depression, heartache, and other emotions resulted in his inability to fulfill his obligations, perform his duties, and take care of himself;
   
   c.  he was young and did not know how to handle the problem; 
   
   d.  he found himself getting mixed up with the wrong people and doing the wrong things for many years and apologizes for his actions; and
   
   e.   he is now living right, is a productive member of society, and requests consideration be given to upgrade his discharge.
   
3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* Self-authored statements
* two character references

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 13 November 1984.  He was trained in and awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record) shows in Item 18 (Appointments and Reductions) that he was promoted to specialist four (SP4)/E-4 on 1 January 1986, and this was the highest rank he attained while serving on active duty.  It also shows he was reduced on two separate occasions and that his final reduction was to private (PV1)/E-1 on 23 March 1988.

4.  On 23 February 1988, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for being AWOL from on or about 6 September 1987 – 11 February 1988.

5.  On 23 February 1988, the applicant acknowledged the charge preferred against him for violating Article 86 of the Uniform Code of Military Justice (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 23 March 1988, 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 8 April 1988, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 2 years and 21 days of total active service, of which 157 days were time lost.

9.  The applicant submitted a DD Form 293 with his application to this Board.  However, he exceeded the 15-year statute of limitations to appeal to the Army Discharge Review Board.

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

* exhibits integrity, accountability, and dedication with a purpose in life
* learned from his bad experiences which led to positive life changes
* is a good man of God
* endured from his struggles and has come back a stronger person

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 general discharge (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 young and did not know how to handle his difficult divorce when he went AWOL.  His claim is insufficiently 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 157 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)                                         AR20130017089





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ABCMR Record of Proceedings (cont)                                         AR20130017089



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