IN THE CASE OF:	   

		BOARD DATE:	  21 October 2014

		DOCKET NUMBER:  AR20140005944 


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 uncharacterized discharge to an honorable discharge.

2.  The applicant states, in effect, his period of absence without leave (AWOL) service resulted from repeated attempts to transfer to the Army National Guard (ARNG) following the death of his father, his mother’s poor health, and the need to assist his mother in the care of his two younger siblings.  He was denied access to counsel.

3.  The applicant provides:

* two one-page, self-authored statements
* a two-page, self-authored statement
* a letter of support
* his father’s death certificate
* a letter from a physician
* the first page of his DD Form 458 (Charge Sheet)

4.  In his second one-page self-authored statement, he offers to appear in person before the board to address any questions they may have.

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 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 29 October 1997.  He entered active duty at Fort Benning, GA for the purpose of completing one station unit training (OSUT); however, his records show he did not complete OSUT.  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  Records show his father died on 27 December 1997.

4.  On 28 January 1998, he was reported by his unit as AWOL.  On 27 February 1998, he was dropped from the rolls of the Army and on or about 13 April 1998, he was returned to military control. 

5.  On 22 April 1998, he provided a two-page letter in which he requested an entry level separation (ELS) because:

* his father died while he was at home on leave, and he informed his chain of command
* on his return to his unit, he attempted to pursue an ELS or hardship discharge, with no success
* he requested access to legal counsel but was ignored
* his Drill Sergeant told him to go AWOL for in excess of 30 days, after which time he would be dropped from the rolls and issued a general discharge
* he went AWOL out of concern for his family and due to a lack of response from his chain of command

6.  On 23 April 1998, court-martial charges were preferred against him for being AWOL during the period 28 January 1998 through 13 April 1998.

7.  On 23 April 1998, he consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.
8.  In his request for discharge, he indicated he understood that by requesting 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 (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 6 October 1998, the separation authority approved his request for discharge in lieu of court-martial and directed the issuance of an ELS.

10.  On 13 November 1998, he was discharged accordingly.  His                      DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 10 months of active military service, of which 203 days were excess leave, 75 days were lost time due to being AWOL, and the remaining 102 days were his total creditable active military service.  His DD Form 214 shows in:

* item 24 (Character of Service): "Uncharacterized"
* item 25 (Separation Authority): "AR 635-200, Chapter 10"
* item 28 (Narrative Reason for Separation): "In Lieu of Trial by Court-Martial"

11.  The applicant provides:

	a.  A one-page, self-authored statement dated 1 April 2014, in which he, in effect, outlines his contentions that:

* despite repeated attempts to seek an accommodation, to include transfer to the ARNG so he could care for this family while fulfilling his military commitments, his lack of success led him to go AWOL
* while AWOL, he worked two full-time jobs to support his family
* he was misled by his company commander, who stated and led him to believe he would receive a general discharge
* since his discharge he has served in the Boston Fire Department, been involved in his church, and participated in charities sponsored by the Masons and the Shriners

	b.  A letter of support from a church elder, which, in effect, confirmed the death of his father, stating he had been assisting his family and should be allowed to come home so that he could continue such support.

	c.  A statement from his mother’s physician, which, in effect, confirmed she was being treated for asthma and had been emotionally and physically in need of support as a result of the loss of her husband.  The physician stated that the applicant’s continued support was imperative.
12.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  

	b.  Paragraph 3-7b states 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.

	c.  Paragraph 3-9a(1) states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.  ELS is defined as that period when the Soldier is undergoing initial entry training for no more than 180 days of creditable continuous active duty.  

13.  Army Regulation 15-185 governs operations of the ABCMR.  It states applicants do not have a right to a hearing before the ABCMR.  The Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant's request for a personal appearance hearing was carefully considered; however, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.
3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial, which may have resulted in a felony conviction.

4.  The separation approval authority approved discharge under the provisions of chapter 10, in lieu of court-martial, and directed an uncharacterized character of service.

5.  Based on his record of indiscipline, which includes 75 days of AWOL, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel; therefore, he is not entitled to a general or honorable discharge.  It appears his command considered his short time in service and the circumstances of his discharge, as he could have received an under other than honorable conditions 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)                                         AR20140005944





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ABCMR Record of Proceedings (cont)                                         AR20140005944



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