IN THE CASE OF:	

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130021017 


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 under honorable conditions (general).

2.  He states he went home to California from Hawaii on emergency leave due to an earthquake in 1996 and a subsequent call to the Red Cross from his mother, indicating that she was injured in the earthquake.  During the time he was on leave, his mother was on drugs and stole his bank card and checks.  Therefore, due to no fault of his own, he was unable to return to his unit.  He has turned his life around and is not the same person he was in Army.  He is coaching a 
semi-pro football team and he is helping young men change their lives by giving them an opportunity to better themselves.

3.  The applicant provides his self-authored statement and a statement 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 24 March 1993.

3.  On an unknown date, charges were preferred against him for being absent without leave (AWOL) from 23 February 1994 to 25 March 1994.

4.  On 18 April 1994, 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 on his behalf.

6.  On 25 May 1994, the appropriate authority approved his request and directed the issuance of a discharge under other than honorable conditions.

7.  On 14 June 1994, 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 1 year, 1 month, and 5 days of net active service during this period with lost time from 25 February 1994 to 11 April 1994.  

8.  His record is void of any evidence that shows his AWOL was based on his mother stealing his funds to return to his unit in Hawaii.

9.  On 27 December 1996, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  The ADRB denied his appeal on 8 April 1997 citing that the board determined he was properly and equitably discharged. 

10.  The supporting statement submitted by the applicant speaks highly of the applicant's dedication and volunteer work for the community.  The author stated that the applicant has shown excellent leadership skills and has become a mentor to the men who are trying to accomplish their athletic football goals and become better men.

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 3-7b 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 his AWOL was due to his mother stealing his funds and he could not return to his unit in Hawaii.  There is no evidence and the applicant has not provided any to substantiate his claim or any evidence to show he sought guidance and/or assistance from his chain of command or Red Cross concerning securing money or transportation to return to his unit.  Therefore, this contention is not supported by the available evidence.

2.  The fact that the applicant has turned his life around and is now assisting young men change their lives was considered; however, good post-service conduct alone is not normally a basis for upgrading a discharge.  He must provide evidence to prove the discharge was rendered unjustly, in error, or that there are mitigating circumstances which warrants the upgrade.

3.  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 being AWOL from 
23 February 1994 to 25 March 1994.  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.

4.  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 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 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)                                         AR20130021017





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ABCMR Record of Proceedings (cont)                                         AR20130021017



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