IN THE CASE OF:  	  

		BOARD DATE:  26 March 2015	  

		DOCKET NUMBER:  AR20140013696 


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 an honorable discharge (HD).  

2.  The applicant states, in effect:

    a.  He requests an upgrade of the disproportionally harsh judgment placed on his record with reference to his first and only positive urinalysis test.  This moderation would assist him with receiving an HD.

    b.  It was an isolated incident on his part and it was a singular lapse in judgment.  His service record was otherwise exemplary and his civilian conduct has been lawfully compliant.

    c.  Maturity has made him more keenly aware of the need for a good name, which he strives daily to acquire.  He wants to be actively affiliated with veterans’ organizations. 
 
3.  The applicant provides a driver’s license, social security card, DD Form 214 (Certificate of Release or Discharge), and three letters of support. 

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 May 1980.  After completing initial entry training, he was awarded military occupational specialty 71L (Administrative Specialist).  The highest rank/grade he attained while serving on active duty was specialist/E-4.

3.  Effective 21 October 1986, his duty status was changed from absent without leave (AWOL) to dropped from the rolls of the Army.  

4.  A DD Form 458 (Charge Sheet), dated 22 October 1986, shows he was charged with using marijuana between 18 July and 18 August 1986 and for being in an AWOL status as of 22 September 1986.

5.  On 28 December 1986, he was returned to military control.

6.  A DD Form 458 (Charge Sheet), dated 5 January 1987, shows he was charged with being AWOL from 22 September to 28 December 1986.

7.  On 5 January 1987, 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.

8.  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 chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).
.
     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 UOTHC 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 Veterans Administration
* 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 UOTHC discharge

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

9.  In his statement regarding his discharge he stated, in effect:

     a.  He had served in the military for 6 years and 4.5 months.  He had received several achievements and awards.  He personally worked for a brigadier general as his clerk.  It was a shame that the Army did not take all of his achievements into consideration.

    b.  The Army was known for taking the advantage when one makes a mistake.  He did not feel sorry for himself, but he felt sorry for the Army.  He saw some of the best Soldiers return to civilian life due to how the Army treated them.  He was going to keep fighting his discharge when he returned to civilian life.  

10.  On 16 January 1987, an authorized official approved his request and directed that he receive an UOTHC discharge and reduction to the lowest enlisted grade. 

11.  On 2 February 1987, the applicant was discharged accordingly.  His DD Form 214 for this period of service shows he completed 6 years, 5 months, and 19 days of net active service for this period, with 97 days of lost time, due to being AWOL.  He was discharged in the rank/grade of private/E-1.  

12.  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.



13.  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, an UOTHC discharge is normally considered appropriate.

     b.  Paragraph 3-7a provides that an HD 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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by upgrading his UOTHC discharge was carefully considered and determined to lack merit.

2.  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.

3.  Based on his record of being AWOL and using marijuana, 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)                                         AR20140013696



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ABCMR Record of Proceedings (cont)                                         AR20140013696



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