IN THE CASE OF:	

		BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130019835 


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 (UOTHC) to general under honorable conditions or to have his records expunged to show he was never enlisted.

2.  He states:

	a.  He was properly discharged for running away.  He was 18 years of age at the time and now he's 36 years of age.  He has regretted it since that time.

	b.  He has contacted a recruiter several times to enlist to fix his mistake, but he is unable to enlist with the type of discharge he was issued.

	c.  He has no criminal activity and has never been to jail or had any misdemeanors other than a speeding ticket.

	d.  He is married with no children and has been in his current job for 5 years.

	e.  He wants a status change because he wants an education in Criminal Justice.  Unfortunately, he is unable to pursue this vocation because of his discharge UOTHC.

	f.  He's not asking for an honorable discharge because he acknowledges that running away was far from honorable.

	g.  He was told that since he never completed advanced individual training (AIT), he was never considered to be a Soldier or full-time employee in the eyes of the military.

3.  He provides no additional evidence.

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 was born on 20 July 1977 and he enlisted in the Regular Army on 26 July 1995 at 18 years of age.  He was assigned to Fort Leonard Wood, MO, for basic training.  At the completion of basic training, he was reassigned to Fort Huachuca, AZ, for AIT in military occupational specialty (MOS) 96B (Intelligence Analyst).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) indicates he did not complete training in MOS 96B and was reassigned to Fort Sill, OK, for training in MOS 13F (Fire Support Specialist).

4.  On 9 October 1996, charges were preferred against the applicant for being absent without leave from 8 to 22 April 1996 and from 25 April to 5 October 1996.

5.  On 10 October 1996, he consulted with legal counsel and he 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.  In doing so, he admitted guilt to the offense charged.  He acknowledged he understood he might encounter substantial prejudice in civilian life and he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if a discharge UOTHC were issued to him.  He elected not to submit statements in his own behalf.

6.  On 14 November 1996, 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 the issuance of a discharge UOTHC.

7.  On 12 December 1996, he was discharged UOTHC after completing 10 months and 18 days of active military service with 179 days of lost time.

8.  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.

9.  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 UOTHC is normally considered appropriate.

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

2.  The applicant's request for a chapter 10 discharge after appropriate and proper consultation with a military lawyer tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  A discharge UOTHC is normally appropriate for a Soldier discharged under the provisions of Army Regulation 635-200, chapter 10.

3.  The evidence of record 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 did not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general discharge and the applicant provided insufficient evidence/argument why it should be upgraded now.

4.  Records show the applicant was 18 years of age at the time of his offenses.  However, there is no evidence that indicates that he was any less mature than other Soldiers of the same age who successfully completed their military service.

5.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

6.  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 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)                                         AR20130019835



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ABCMR Record of Proceedings (cont)                                         AR20130019835



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