IN THE CASE OF:  	  

		BOARD DATE:  	  12 February 2015

		DOCKET NUMBER:  AR20140012826 


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, in effect, an upgrade of his discharge from under other than honorable conditions (UOTHC) to a general discharge (GD) or an honorable discharge (HD).

2.  The applicant states:
   
   a.  He was very young when he entered active duty and that he did not understand all the responsibilities of being in the service.  He claims he joined the Army on the "buddy plan," because of peer pressure.  He was scared to death to find out his first duty station was going to be away from his family and that his childhood sweetheart was pregnant.  He had never been away from home and didn’t know what to expect so he ran out of fear.  He came back after a while; but he was very confused and scared of the consequences of his actions.  
   
   b.  He was unable to adjust to military life but believes he has now grown and matured as a man, and that his post-service conduct as an advocate in the fight against drugs and gang violence should be considered.  
   
   c.  He did not realize the impact a UOTHC discharge would have on his life. He would really like this upgrade before his death so he can finally be at peace with himself and for his family to feel proud that he was a part of the U.S. Army and served honorably.
3.  The applicant provides 5 letters of support, a DD Form 293 (Application for the Review of Discharge), and his DD Form 214 (Report of Separation from Active Duty).  

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.  On 8 February 1982, the applicant enlisted in the Regular Army at 21 years of age.  After completing initial entry training, he was awarded military occupational specialty 16P (Air Defense Artillery Short-Range Missile Crewman).  

3.  On 24 August 1982, pursuant to Article 15, Uniform Code of Military Justice (UCMJ), he received nonjudicial punishment (NJP) for failure to go to his appointed place of duty on 12 August 1982.  On 24 March 1983, he received NJP for being absent without leave (AWOL) from 1 March until 17 March 1983.  He was reprimanded for misconduct and was reduced to the rank of private/E-2, extra duty for 14 days, and a forfeiture of $147.00 pay for 1 month, which was suspended.

4.  A DD Form 4187 (Personnel Action), dated 5 April 1983, shows he was AWOL from 1 to 4 April 1983.  Therefore, on 5 April 1983, his company commander vacated suspension of the forfeiture of pay imposed on 24 March 1983. 

5.  On 5 July 1983, the applicant signed an Admission of AWOL for Administrative Purposes knowingly, willingly, and voluntarily acknowledging his AWOL status from 26 April until 28 June 1983.    

6.  On 7 July 1983, applicant consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the UCMJ and of the possible effects of a UOTHC discharge if a request for discharge for the good of the service in lieu of trial by court-martial were approved.  

7.  After consulting with counsel, the applicant voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

a. He acknowledged that:

* he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charges against him or of lesser-included offenses therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* he understood he could be discharged UOTHC and furnished a Under Other Than Honorable Conditions Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge

	b.  He indicated he would not submit a statement in his own behalf.

8.  On 27 July 1983, the applicant's request was approved, and on 15 August 1983, he was discharged with his service characterized as UOTHC.   

9.  The applicant provides 5 reference letters that attest to his post-service character as a mentor with young kids for the H.O.P.E (Helping Ourselves Pursue Education) Program.  The recommendation letters support his good standing in the community by becoming a Chemical Dependency Counselor for the City of Cleveland, Ohio, and working with the city to help prevent violence and gang retaliation.  Furthermore, the letters state that he has brought positive awareness to youth in the community by assisting with conflict resolution and giving non-traditional drug and alcohol awareness training.  The individual who provided the reference letters stated he is hardworking, level-headed, highly motivated, and caring person who takes the time to provide positive mentorship to youth in need. 

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under than honorable conditions discharge was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The Army does not have nor has it ever had a policy of automatically upgrading discharges based on the passage of time.  Further, post-service conduct is not normally a basis for upgrading a properly-issued discharge.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The applicant provided 5 reference letters on his behalf for post service conduct.  Although the letters commend him, they do not mitigate the seriousness of the offense at the time of his service.

3.  The available records show the applicant received NJP for failure to go to his appointed place of duty and for being AWOL.  In addition, he was AWOL again for 4 days, which vacated suspension of his previous punishment.  Finally, the applicant was pending a court-martial for being AWOL, this time for over 
2 months.  Therefore, the type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

4.  Records show the applicant was 21 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  Based on the applicant's NJP, periods of AWOL, and his admission of guilt, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD or an HD.

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)                                         AR20140001770



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ABCMR Record of Proceedings (cont)                                         AR20140012826



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