BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140017766 


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 discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states that he is requesting a change in his discharge status due to the fact that he was not discharged dishonorably and left as a result of personal alcohol issues.  During the time of his enlistment, the Army did not present a leadership role in addressing this problem and he is humbly requesting his discharge be upgraded.  He concludes that he is a sober, hardworking, single parent and proud American.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge).

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 records show that he enlisted in the Regular Army on 5 March 1985.  Upon completion of initial entry training he was assigned for duty in Germany.  The highest rank/grade he attained while serving on active duty was private/E-2.  However, at the time of his separation he held the rank grade of private/E-1.

3.  His record reveals a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for failing to obey a lawful order by wrongfully leaving the limits of his post on 13 December 1985.

4.  The applicant's record contains DA Forms 4187 (Personnel Action) which show his duty status was changed on the dates shown for the statuses shown:

* 9 April 1986 - from Present for Duty (PDY) to Absent Without Leave (AWOL)
* 8 May 1986 - from AWOL to Dropped from the Rolls (DFR)
* 16 June 1986 - from DFR to Attached, Return to Military Control, following his surrender to military authorities at Fort Sam Houston, TX

5.  A DD Form 458 (Charge Sheet), dated 19 June 1986, shows court-martial charges were preferred against the applicant for one specification of violating Article 86 of the UCMJ by departing his unit in an AWOL status on or about 9 April 1986 and remaining so absent until on or about 16 June 1986.

6.  On 20 June 1986, the applicant consulted with legal counsel and he 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 the procedures and rights available to him.

7.  On 20 June 1986, following counseling, the applicant submitted a voluntary written request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  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 an undesirable discharge.  He further acknowledged his understanding that, if his request for discharge was accepted, he could be discharged under other that honorable conditions and furnished an Other Than Honorable Discharge Certificate.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant declined his right to submit a statement in his own behalf.

8.  On 2 July 1986, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed that the applicant be reduced to the lowest enlisted rank/grade and discharged under other than honorable conditions.

9.  On 22 July 1986, the applicant was discharged accordingly.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be given an individual who was discharged for the good of the Service.  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 discharge should be upgraded was carefully considered.

2.  The applicant's post-discharge accomplishments are duly noted; however, they are not sufficiently mitigating to overcome the acts of misconduct that he committed during his period of service.

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

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulation 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  In view of the foregoing, there is no basis for granting the applicant a general 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)                                         AR20140017766





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ABCMR Record of Proceedings (cont)                                         AR20140017766



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