BOARD DATE:   20 January 2015

		DOCKET NUMBER:  AR20140010039


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 (UOTHC) to honorable.

2.  The applicant states he is a strong member of the community.  He does a lot of volunteer work for his community and for volunteer organizations.  He participates in the Veterans of Foreign Wars and the American Legion; but because of his discharge, he is unable to join either of these organizations.  He understands and accepts that the decision of this Board could go either way but hopes that the Board would choose to upgrade his status.  He regrets terribly how he left the military.  His wife at that time did not like where they were and wanted to go back home.  In fear of losing his family, he drove them back home without authorization.  He wishes he had done it differently.  He is now trying to make up for his actions by helping others.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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 24 June 1993, the applicant enlisted in the Regular Army.  He completed his initial training as a food service specialist.

3.  On 24 June 1994, the applicant was advanced to private first class, pay 
grade E-3.

4.  On or about 9 November 1995, the applicant was absent without leave (AWOL).  On 6 February 1996, he was returned to military control.

5.  On 13 February 1996, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 (AWOL) as described above.

6.  On 13 February 1996, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge UOTHC, and the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant 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 for the good of the service in lieu of trial by court-martial.

7.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a discharge UOTHC which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a discharge UOTHC.

8.  In his request for discharge, the applicant indicated that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 8 March 1996, the separation authority approved the applicant's request and directed that he receive an UOTHC discharge.  On 19 June 1996, the applicant was discharged accordingly.  He completed a total of 2 years, 8 months and 29 days of creditable active duty service and accrued 90 days of lost time.

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

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

12.  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 at any time after the charges have been preferred.  A discharge UOTHC 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 applicant contends that his UOTHC discharge should be upgraded to honorable because he does a lot of volunteer work for his community and for volunteer organizations.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct for Army personnel.  His lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

4.  The applicant's undocumented good post-service conduct is noted.  However, it does not sufficiently mitigate his lost time.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or  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 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)                                         AR20120019703



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ABCMR Record of Proceedings (cont)                                         AR20140010039



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