IN THE CASE OF:  	  

		BOARD DATE:  5 May 2015	  

		DOCKET NUMBER:  AR20140013308 


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 (GD).  

2.  The applicant states:

     a.  He gives his deepest sympathy for all service members who have given their lives for our country and what it stands for.  He continues to hold a proud feeling for those who serve our great country.

     b.  It was a great honor for him to have served in the military.  He is very disappointed in his actions as a young man that led to receiving an UOTHC discharge.  Alcohol and drug abuse contributed to his actions.

     c.  He has been in prison for a total of 16 years and is about to complete his current 11-year sentence.  During the course of his current imprisonment, he received treatment forcing him to focus on doing right in life and to help support his family.  He received several achievements and earned college credits.

     d.  He participated in off-site job programs from the prison.  He worked at the North Carolina Air National Guard and its Civil Engineering Department.  He has people who will provide character references for him.

     e.  He is currently on a work release program through the prison.  He has been employed for 37 months and promised employment upon his release.

     f.  He is a Gulf War veteran.  He was given vaccinations of anthrax, botulinum toxoid, and exposed to environmental, chemical and biological hazards.  Once he returned to the U.S., he was charged with being absent without leave (AWOL) for missing a scheduled boxing match.  

     g.  His second charge of being AWOL was a result of his alcohol and drug problems which led to his arrest on drug charges.  The military placed a detainer on him for being AWOL.  He was found not guilty of the drug charge and extradited to Fort Dix, NJ and out-processed at that time.

     h.  He was unaware that he needed to return for his discharge.  He did not pay attention to the details.  He assumed at the time of his out-processing at Fort Dix that he had been officially processed out of the military.  He requests forgiveness for his past actions in connection with his discharge.

3.  The applicant provides:

* a self-authored statement
* certificates
* a copy of his official military personnel file (OMPF) from the National Personnel Records Center

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 on 6 July 1989.  After completing initial entry training, he was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  Effective 19 August 1991, his duty status was changed from present for duty to AWOL.  Effective 22 August 1991, his duty status changed from AWOL to present for duty.

4.  Effective 23 December 1991, his duty status was changed from present for duty to AWOL.  Effective 22 January 1992, his status changed from AWOL to dropped from the rolls (DFR).
  
5.  Effective 19 September 1993, his duty status was changed from DFR to confinement by civilian authority.

6.  On 24 July 1994, he was returned to military control.

7.  A DD Form 458 (Charge Sheet), dated 3 August 1994, shows he was charged with being AWOL from 23 December 1991 to 19 September 1993.

8.  On an unspecified date, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an UOTHC discharge, and of the procedures and rights available to him.

9.  After consulting with counsel, he 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.

     a.  He acknowledged that:

* he could request discharge for the good of the service because a charge had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charge against him or a lesser-included offense therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation for he had no desire to perform further military service
* he understood he could be issued an under other than honorable conditions discharge 
* as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

     b.  He indicated he would submit statements in his own behalf.

10.  His available record did not contain his statement in reference to his request for discharge.

11.  On 3 November 1994, an authorized official approved his request and directed he receive an under other than honorable discharge and reduction to the lowest enlisted grade. 

12.  On 25 November 1994, the applicant was discharged accordingly.  His DD Form 214 for this period of service shows he completed 2 years, 9 months, and 16 days of net active service for this period, with 642 days of lost time, due to being AWOL.  He was discharged in the rank/grade of private/E-1.  

13.  There is no evidence in his service record which shows he sought assistance from his chain of command for issues involving personal problems or for drug and alcohol abuse.

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board’s 15-year statute of limitations.

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

     a.  Chapter 10 of that regulation provides, in pertinent part, 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 3-7b 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's contention that his record should be corrected by upgrading his UOTHC discharge to a general discharge was carefully considered and determined to lack merit.

2.  He contends that drug and alcohol abuse contributed to his decision to go AWOL; however, there is no evidence showing that he sought assistance from his command for alcohol and drug abuse prior to going AWOL.  Even if drug and alcohol abuse did contribute to his decision to go AWOL, it would not be a basis for upgrading his discharge.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  His records show he was charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout the discharge process.

4.  Based on his record of AWOL and confinement by civil authority, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to the relief requested.

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)                                         AR20140013308



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ABCMR Record of Proceedings (cont)                                         AR20140013308



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