IN THE CASE OF:  

		BOARD DATE:  21 May 2015

		DOCKET NUMBER:  AR20140017557 


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.

2.  The applicant states, in effect, he served in the Army with pride and honor.  He was age 19 with his first child on the way.  He was very dedicated to his work; but became confused about the support and leadership of a drill sergeant who told him that no matter what he did in life in or out of the Army, he would never amount to "s___."  This drill sergeant gave him a real hard time.  The applicant wanted to serve with the belief that the Army was the best choice for him and he enjoyed it.  At age 37, he still remembers what the drill sergeant said to him.  He wanted to feel like a man, but the drill sergeant disregarded him.  He still feels like nothing he does will ever be acceptable in society.  He asks for a discharge that truly stands for how he served.

3.  The applicant did not provide any supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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, and 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 November 1996.  He did not complete training and was not awarded a military occupational specialty.  

3.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows he completed basic training and was then reported absent without leave (AWOL).  Item 21 (Time Lost) shows he was AWOL from 15 March to 9 April 1997 
and from 15 April 1997 to 14 May 1998.  

4.  On 21 May 1998, the applicant was charged with the above periods of AWOL.   

5.  On 21 May 1998, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a discharge under conditions other than honorable which would deprive him of many or all Army benefits, and he might be ineligible for veteran’s benefits administered by the Department of Veterans Affairs (VA).  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an UOTHC discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He indicated he would not submit a statement in his own behalf.

6.  His company commander recommended approval of the action with issuance of a UOTHC discharge.  On 12 November 1998, the separation authority approved the discharge request and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 7 December 1998, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  

8.  There is no evidence he requested that the Army Discharge Review Board upgrade his discharge within that board’s statute of limitations.




9.  Army Regulation 635-200 provides 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 UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7a states 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 states 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 has provided no evidence to support his request for an upgrade of his UOTHC discharge.

2.  His request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was appropriately characterized based on the nature of his offenses and the circumstances of his separation do not warrant an upgrade of his discharge to either an honorable or a general characterization of service.

3.  In view of the foregoing, his request 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 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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20140017557



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