IN THE CASE OF:	  

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20130018570 


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 discharge be upgraded to a general discharge.

2.  The applicant states he believes his discharge is unjust because he completed 80 percent of his enlistment and he defended the nation during the Gulf War.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and three letters of support.

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 31 October 1990.  He completed training and he was awarded military occupational specialty 13B (Cannon Crewmember).

3.  A DD Form 458 (Charge Sheet), dated 8 August 1995, shows charges were preferred against the applicant for being absent without leave (AWOL) from 
27 August 1993 through 1 August 1995.

4.  On 8 August 1995, he consulted with legal counsel, who advised him of the basis for his pending trial by court-martial, the maximum permissible punishment authorized, the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.

5.  After consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he understood he could be discharged under other than honorable conditions and given an under other than honorable conditions discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he was guilty of the charge against him or a lesser included offense contained therein.  He elected not to make a statement in his own behalf.

6.  On 20 October 1995, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 with an under other than honorable conditions discharge and directed the applicant be reduced to private (PV1)/E-1.  On 7 December 1995, the applicant was discharged accordingly.  

7.  The applicant provides three letters of support that, in effect, characterize him as reliable, caring, and responsible asset to his community.  

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

	a.  	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 discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

   c.  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 request for an upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant's records shows he had a lengthy period of AWOL.  As a result, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general discharge.

3.  The applicant provided letters of support attesting to his reliability and hard work and to him being a caring and responsible asset to his community.  However, post-service conduct and achievements alone are not normally a sufficient basis for upgrading a discharge.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  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)                                         AR20130018570





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ABCMR Record of Proceedings (cont)                                         AR20130018570



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