IN THE CASE OF:	  

		BOARD DATE:	  14 May 2015

		DOCKET NUMBER:  AR20140014839 


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

2.  He states the events that led to his discharge were a direct result of injustices committed toward him by a noncommissioned officer (NCO).  He was very young at the time and did not use his best judgment when the injustice occurred.

3.  He provides no additional evidence in support of his request.

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's record shows he was born on 18 September 1971.  Following a period of nearly 4 years in the U.S. Army Reserve, he enlisted in the Regular Army on 25 May 1995 at the age of 23 years, 8 months, and 8 days.  The highest rank/pay grade he attained while serving on active duty was private first 
class/E-3.  However, at the time of his discharge, he held the rank/pay grade of private/E-1.

3.  The applicant was absent without leave (AWOL) from his unit from 19 to 25 March 1996.

4.  His record contains a DD Form 458 (Charge Sheet), dated 23 October 1996, which shows he was charged with one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from his unit from on or about 2 May 1996 to on or about 20 October 1996.

5.  On 23 October 1996, he 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.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  He submitted a written statement wherein he stated that around the time that he went AWOL he was diagnosed with severe depression which was mainly due to separation from his wife.  He was also threatened by an NCO from another unit when he found out the NCO was having an affair with his wife.  The applicant attested that his unit was investigating the NCO at the time that he went AWOL.  He advised the separation authority that proof of these situations could be obtained from his unit upon request.  Another reason that he went AWOL was because his grandfather, who practically raised him, was very ill and needed his assistance.  He provided a letter from his grandfather's physician as proof his illness.

7.  His chain of command recommended approval of his request and recommended issuance of an under other than honorable conditions discharge.

8.  On 10 December 1996, the separation authority approved his request and directed that he be reduced to the lowest enlisted grade and issued a discharge under other than honorable conditions.

9.  On 19 February 1997, he was discharged under the provisions of chapter 10, Army Regulation 635-200, with a service characterization of under other than honorable conditions.  He completed a total of 1 year, 2 months, and 27 days of creditable active military service and had 178 days of lost time due to being AWOL.

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

11.  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.  An unauthorized absence in excess of 30 consecutive days can lead to a punitive discharge or confinement under the Manual for Courts-Martial.

	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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his under other than honorable conditions discharge be upgraded to an honorable discharge was carefully considered and determined to be without merit.

2.  He contends his misconduct was the result of his young age and immaturity.  His record shows he was nearly 24 years of age at the time of his enlistment and between 24 and 25 years of age at the time of his offenses.  There is no evidence indicating that he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  The applicant's contention that he was experiencing personal problems at home that he felt required his immediate attention is duly noted.  However, his record is void of any indication that he sought the assistance of his chain of command, unit chaplain, or any of several agencies that were available to help him cope with these matters.

4.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 to avoid a trial by court-martial which may have resulted in a felony conviction or a punitive discharge. 

5.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, he is not entitled to an upgrade of his 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 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)                                         AR20140014839



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ABCMR Record of Proceedings (cont)                                         AR20140014839



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