BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140012266 


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 correction of his military records to show his under other than honorable conditions (UOTHC) discharge upgraded to honorable.
   
2.  The applicant states he believes his discharge was based on false information.  He was charged with being absent without leave (AWOL) but he had cleared the base.  He contends that he had problems with his first sergeant.  In a separate letter, he states:

	a.  During the final months of his enlistment he received constant ridicule because he had chosen not to reenlist.  He had 2 weeks of leave which was approved and thus would be discharged 2 weeks prior to the expiration of his term of service (ETS).  Upon receiving his final orders in the midst of the excitement and expectations of life after the military, he proceeded to clear post.  They moved all of their belongings into a truck.  He completely cleared, with one department after the other signing off on his clearance papers.  The next morning he loaded up the family and proceeded home.

	b.  After securing employment and moving his family into an apartment, he received a telephone call from his mother who informed him that the military police were at her door asking for him.  She was informed that he was AWOL.  The next day, he surrendered himself to his county police in Maryland.  The police contacted the military and made arrangements for him to be picked up and transported to Fort Dix, New Jersey.

	c.  The applicant states he does not remember much about the 5 days he spent at Fort Dix, other than staying in a barracks.  He wishes he could go back to that week because he would have fought his discharge.  If any options were offered other than going back to his former unit, he would have reenlisted.  He does not blame anyone at Fort Dix.  He was a 23-year old who did not have anyone to represent him.  He believes what happened to him was unjust.  Who goes AWOL 2 weeks before their ETS?

3.  The applicant provides copies of:

* DD Form 214 
* Four statements from himself, his wife, and two friends

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 1 November 1983, the applicant enlisted in the Regular Army.  He completed his initial training as an administrative specialist.

3.  In 1984, the applicant completed the Basic Airborne Course at Fort Benning , Georgia.

4.  On 6 July 1984, the applicant was assigned to the 782nd Maintenance Battalion at Fort Bragg, North Carolina.

5.  On 1 October 1985, the applicant was advanced to specialist four, pay grade E-4.

6.  On 14 October 1986, the applicant accepted nonjudicial punishment for failure to go to morning formation on 8 and 9 October 1986.

7.  DA Forms 4187 (Personnel Action) show the following changes in his duty status:

	a.  9 October 1986: changed from present for duty to confined civilian authorities and pending hearing for writing bad checks;

	b.  10 October 1986: changed from confined civilian authorities to present from duty after paying fine related to bad checks;

	c.  20 October 1986: changed from present for duty to AWOL based on company commander voiding his leave due to financial problems but applicant left anyway; and

	d.  19 November 1986: changed from AWOL to dropped from the rolls due to applicant’s continuous absence since 0600 hours, 20 October 1986.

8.   On 26 November 1986, charges were preferred under the Uniform Code of Military Justice for violation of Article 86 due to being AWOL.

9.  On 11 February 1987 the applicant was returned to military control at Fort Dix, New Jersey.

10.  A Fort Dix Correction Facility Form 691A (Personnel Control Facility Interview Sheet), dated 19 February 1987, shows the applicant made a statement in response to why he went AWOL.  He said, in essence, that he had serious financial problems that resulted in his filing for bankruptcy.  He was married with three small children.  He could not afford to shelter and feed them.  He and his wife had several bad check charges brought against them.  While out-processing from Fort Bragg, other complications arose.  After resolving half of the problems, he lost one pay grade and the chain of command said he could continue processing.  When he received his pay he could pay some fellow Soldiers and then finish clearing and proceeding to separation point to be discharged from the Army.  However, he was told he could not have his final pay until his ETS which was 5 days later.  After having his family in North Carolina for a week with no money and no place to stay and a Police Academy date set for 1 November 1986, he was really upset and mentally depressed.  After going to the Inspector General and contacting a Maryland Senator for help, but receiving none, he felt his only opportunity was to go home and try to find some means to support his family.



11.  On or about 20 February 1987, 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 an under other than honorable conditions discharge, and of the procedures and rights that were 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.

12.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

13.  On 3 April 1987, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).  On 23 April 1987, the applicant was discharged accordingly.  He had completed a total of 3 years, 1 month, and 
29 days of creditable active military service and accrued 114 days of time lost due to AWOL.

14.  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.

15.  The applicant’s wife of 32 years provides a letter of support wherein she states the applicant and she raised three children.  They are proud grandparents.  The applicant has been the best father and husband.  He is caring, loving and very supportive.  He is dedicated to his family.  However, due to the country’s financial troubles so much of his self-esteem has been affected.  He recently sought help by seeing a therapist where it was discovered that he had suppressed the hurt he endured due to receiving a less than honorable discharge from the Army.  His discharge has had a significant impact on their lives.  While at Fort Bragg, he endured a great deal at the hands of the first sergeant.  There were some instances when just pure mean things were said and done to him.  Nothing was done to support them as a family.  He was not provided any resources to assist with his transition from military to civilian life.  She contends that she was not aware at the time of how much pain he endured due to his treatment as a member of his unit at Fort Bragg.  Had she known, she believes they would have been more diligent in requesting an upgrade of his discharge using all of their resources to include litigation.  The applicant is hoping to receive employment in the Federal Government upon receiving this upgrade of his discharge.  Receiving the veterans’ preferences would enhance his ability to secure employment.  But, what is really important is what it can do for his confidence.  The applicant was a good and proud Soldier.  She wants him to be proud when he talks to his grandsons about his days as a Soldier.

16.  The applicant has also provided two additional letters of support from friends.  These letters, in essence, attest to the applicant’s excellent character and strong work ethic.  He is a genuine and caring person who has always conducted himself with the greatest level of integrity and professionalism.  He has a passion for children and helped start a boys and girls club in Montgomery County, Maryland that has grown from 7 children to more than 200 in just 
3 years.  He is an active member of the community and faithfully attends church.

17.  Army Regulation 635-200:

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  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 (emphasis added), 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 military records should be corrected to show his UOTHC discharge upgraded to honorable because his discharge was based on false information.  He was charged with being AWOL after he had cleared the base.
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.  The available evidence of record clearly shows that the applicant knew his approved leave had been revoked when he left to go home.  Accordingly, he had not been completely cleared and properly discharged.

4.  The applicant has not provided any documentary evidence to convincingly show that his first sergeant was the cause of his problems, or that the first sergeant had improperly failed to help him with his problems.

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

6.  While the Board is cognizance of the applicant's good post-service conduct and his potential employment problems; neither of these factors, either individually or in sum is so meritorious as to warrant the relief requested.

7.  In view of the foregoing, the applicant's request to upgrade his administrative discharge should be denied.

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)                                         AR20110020309



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ABCMR Record of Proceedings (cont)                                         AR20140012266



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