BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140007486 


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 under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  The applicant states that during that time Fort Knox was on alert and he admits that he was very scared.  All of the gear was being prepared for deployment to participate in Desert Storm.  He knew that a close childhood friend was already in country with a Patriot air defense artillery unit.  The local and national news continued to show the panic of Americans and the Saudi people as our Soldiers began landing on their soil.  All he was thinking about was the reality that he knew for him at that time was that he did not want to die or get hurt, he did not want to leave his two daughters (3 and 5 years old) fatherless, and that the life expectancy for his military occupational specialty (MOS) 13B (Cannon Crewmember) was 96 seconds once he hit the ground.  These factors caused him to take time away from his duty to get his thoughts and courage together.  He did return on his own recognizance.  It is time to ask for forgiveness and make things better for his family and himself. 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a self-authored "apology letter"
* extract of American War and Military Operations Casualties:  Lists and Statistics  


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 24 March 1988, the applicant enlisted in the Regular Army.  He completed training and was awarded MOS 13B.  On 29 October 1991, he reenlisted for 2 years.  The highest rank he held was specialist/pay grade E-4.

3.  On 6 August 1992, court-martial charges were preferred against him for being absent without leave (AWOL) from on or about 21 April 1992 to on or about 3 August 1992.

4.  On 6 August 1992, he consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial and the maximum possible punishment under the Uniform Code of Military Justice (UCMJ), of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.

5.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  He acknowledged he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that he understood the elements of the offense charged and he was guilty of the charge against him. 

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished a UOTHC discharge.  He acknowledged he had been advised of and understood the possible effects of a UOTHC discharge and that, as the result of the issuance of such a discharge he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life due to the issuance of a UOTHC discharge.

	f.  He waived his rights and elected not to provide a statement in his own behalf.

6.  On 17 August 1992, his commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and that he be given a UOTHC discharge.

7.  On 24 August 1992, the separation authority approved his request to be discharged for the good of the service.

8.  On 11 September 1992, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial, and his service was characterized as UOTHC.  It also shows he completed 4 years, 2 months, and 6 days of total creditable active military service.  It shows he had time lost during the period 21 April 1992-2 August 1992.

9.  On 16 August 2002, the Army Discharge Review Board denied the applicant's request to upgrade his UOTHC.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred and must include the individual's admission of guilt.  Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 
	b.  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 contentions are noted.  However, the evidence does not support his request that his discharge be upgraded.

2.  Court-martial charges were preferred against him for being AWOL for 104 days, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  He also admitted he was guilty of the offense for which he was charged.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

4.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant's life better or based on the passage of time.

6.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20140007486



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ABCMR Record of Proceedings (cont)                                         AR20140007486



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