IN THE CASE OF:	

		BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130018936 


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 discharge under other than honorable conditions to honorable.

2.  He states that during the time the incident occurred, he was young and not in his right frame of mind after returning from two war zones in less than 2 years.  Over the years, he has become more responsible for his actions.

3.  He provides three supporting statements.

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 April 1989 for a period of 4 years.  He was 21 years and 5 months of age at the time of his enlistment.  He served in Panama from 7 August 1989 to 1 September 1990.

3.  On 27 February 1992, charges were preferred against him for three specifications of violating Article 134 of the Uniform Code of Military Justice for:

	a.  falsely pretending to AT&T that he had the authority to use the AT&T calling card access number belonging to another Soldier between 1 and 13 November 1991, a value of $100.00 or less in long-distance telephone services;

	b.  falsely pretending to AT&T that he had the authority to use the AT&T calling card access number belonging to another Soldier between 8 November 1991 and 29 January 1992, a value of $100.00 or less in long-distance telephone services; and

	c.  wrongfully and unlawfully making a false statement under oath on 23 December 1991 that he received the AT&T calling card access number belonging to another Soldier from an individual in repayment of a debt.

4.  On 13 March 1992, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

5.  In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person.  He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions, 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, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  The applicant elected not to provide a statement in his behalf.

6.  On 24 March 1992, he declined a medical examination.  His records are void of a mental health evaluation.  Additionally, there are no medical records available that indicate he was suffering from mental illness or any health issues prior to his discharge.

7.  On 24 March 1992, the appropriate authority approved his request and directed his discharge under other than honorable conditions.

8.  On 31 March 1992, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an under other than honorable conditions character of service.  It also shows he completed 2 years, 11 months, and 19 days of net active service during this period.

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

10.  The three supporting statements submitted by the applicant speak highly of the applicant's trustworthiness and dependability.  One author stated he has known the applicant for more than 8 years.  He said the applicant gave himself wholeheartedly to those who were less fortunate.  Another author said the applicant had very strong work ethics and encouraged others in a very positive way.  The pastor of his church said the applicant never missed an opportunity to participate in life application classes and worship services.

11.  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 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 contends his discharge should be upgraded because he was young and not in his right frame of mind after returning from two war zones in less than 2 years.  Although his records show he was assigned to Panama, there is no evidence and he has not provided any evidence to show he had a mental health condition that caused his misconduct or that he sought counseling/medical treatment to correct his problem during his military service.  Therefore, this contention is not supported by the available evidence.

2.  The records show he was 21 years and 5 months of age at the time of his enlistment and 24 years of age at the time of his misconduct.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

3.  Although the applicant provided three supporting statements attesting to his dependability and his outstanding qualities, good post-service conduct alone is not a basis for upgrading a discharge.

4.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The records further show he admitted he was guilty of wrongfully obtaining and using an AT&T calling card access number and making a false statement under oath concerning the card.  The records show he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.

5.  His service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

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 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)                                         AR20130018936



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ABCMR Record of Proceedings (cont)                                         AR20130018936



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