IN THE CASE OF:	  

		BOARD DATE:	  13 January 2015

		DOCKET NUMBER:  AR20140008798 


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 his under other than honorable conditions discharge be upgraded to an honorable or general discharge.

2.  He states, in effect, that he believes it is unjust to receive lifetime punishment for one error in judgment at a young age.  He explains that his wife was cheating on him and his newborn son was being subjected to uncaring men.  He was granted leave to go home and take care of his personal problems, but his wife was constantly being moved from one State to another to avoid him.  He states he needs his discharge upgraded to obtain medical treatment for a foot condition he received while in the military.  It saddens him to know he cannot correct an error he brought on himself by going absent without leave (AWOL).

3.  The applicant provides a self-authored statement and six supporting statements.

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 at age 18 on 6 September 1988.

3.  The charge sheet and the discharge packet pertaining to the applicant's discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial are not contained in his available military records.  However, his records contain five DA Forms 4187 (Personnel Action) that show on:

* 24 July 1990, his duty status was changed from present for duty to AWOL, effective 6 July 1990 
* 13 August 1990, his duty status was changed from AWOL to present for duty, effective 29 July 1990
* 13 August 1990, his duty status was changed from ordinary leave to AWOL, effective 7 August 1990
* 13 September 1990, his duty status was change from AWOL to dropped from rolls (DFR), effective 8 September 1990
* 19 October 1990, his duty status was changed from DFR to attached/present for duty, effective 9 October 1990; Soldier surrendered to military authorities at Scott Air Force Base

4.  On 17 December 1990, the applicant was discharged for the good of the service in lieu of trial by court-martial.  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, 11 months, and 28 days of net active service during this period with lost time from 3 April to 10 April 1990, 12 May to 22 May 1990, 6 July to 28 July 1990, and 7 August to 
8 October 1990.  

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

6.  The supporting statements from friends, co-workers, and a supervisor speak highly of the applicant's honesty and dependability.  The applicant's supervisor stated the applicant has been employed by him over 4 years and as such, he trusts him with anyone who dines in his establishment.  A co-worker stated the applicant's work ethic is commendable and he continues to grow for personal and professional gain.  Another co-worker stated the applicant is down to earth and driven by the core value that his family comes first.  A fraternity brother stated that he and the applicant have participated in numerous community service events and the applicant has proven to be responsible and dependable when assigned work.

7.  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 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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 available records show the applicant was 18 years of age at the time of his enlistment and 20 years of age at the time of his discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  Additionally, his contention that his discharge should be upgraded in order to receive medical benefits was considered.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  He must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

3.  The applicant has provided numerous supporting statements attesting to his dependability and his outstanding qualities; however, good post-service conduct alone is not a basis for upgrading a discharge.

4.  The available records do not reference the personal problems the applicant alleges he was experiencing and there is no evidence that he attempted to resolve his problems by going through his chain of command to avoid the misconduct that he committed.

5.  A complete copy of the applicant's chapter 10 discharge packet is not in his available records; however, the presumption of regularity must be applied.  He must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

6.  His discharge under the provisions of chapter 10, Army Regulation 635-200, indicates that he voluntarily requested discharge in lieu of a trial by court-martial and admitted guilt even though the specific offense(s) is/are unknown.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis for granting his 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 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)                                         AR20140008798



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ABCMR Record of Proceedings (cont)                                         AR20140008798



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