IN THE CASE OF:	 

		BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140018439


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

2.  The applicant states, in effect, he went absent without leave (AWOL) after getting married, thinking his wife needed him at home.  He was scared, confused, and young.  He has had a consistent career since leaving the military some 25 years ago and re-established himself in society.  He has been a truck driver, has earned an associate's degree, and runs his own massage therapy practice.   

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a personal letter to the Board.  

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 25 August 1987 at 18 years of age.  He completed training and was awarded military occupational specialty 19K (M1 Abrams Armor Crewmember).  The highest rank/grade he attained during his period of military service was specialist (SPC)/E-4.

3.  A DA Form 4187 (Personnel Action), dated 28 December 1990, changed his duty status from present for duty to AWOL.  Another DA Form 4187, dated        19 January 1991, changed his duty status from AWOL to dropped from the rolls (DFR).

4.  A DD Form 458 (Charge Sheet), dated 24 January 1991, shows charges were preferred against him for being absent from his unit without authority on or about 20 December 1990.

5.  He surrendered to military authorities at Fort Jackson, SC on or about          28 January 1991. 

6.  He underwent a mental status evaluation on 4 February 1991.  He was determined to be alert and oriented.  His affect and mood were appropriate with no evidence of psychosis or major depression with cognitive functioning intact.  He was psychiatrically cleared for any administrative or judicial action deemed necessary by his chain of command.    

7.  On 6 February 1991, he accepted nonjudicial punishment (NJP) for being AWOL from on or about 20 December 1990 to 28 January 1991.  

8.  On 11 February 1991, his immediate commander informed him of his intent to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense, with an under other than honorable conditions characterization of service.  His commander cited his AWOL and DFR status as the reasons for the proposed separation action.  He was advised of his right to:

* consult with legal counsel 
* submit statements in his own behalf
* request a hearing before an administrative board 
* waive his rights in writing


9.  On 12 February 1991, he consulted with legal counsel and was advised of the basis for the contemplated separation action for commission of a serious offense.

	a.  He requested consideration of his case by an administrative separation board, and a personal appearance before the board.  He indicated that he would present statements in his own behalf before the board.  He acknowledged his understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

	b.  He acknowledged he understood that if he received a character of service less than honorable he could apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded.

10.  On 12 February 1991, he voluntarily waived consideration of his case before an administrative separation board, contingent upon receiving a characterization of service no less than general under honorable conditions.  He submitted a statement in his own behalf, wherein he stated his overall record of service was worthy of a general discharge.

11.  On 12 February 1991, the applicant's commander recommended the applicant's separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for commission of a serious offense.  

12.  He consulted with military counsel on 19 March 1991, and again waived consideration of his case by an administrative separation board and elected not to submit statements in his own behalf.  

13.  On 20 March 1991, the separation authority approved the recommendation for his separation under the provisions of Army Regulation 635-200, paragraph    14-12c, and directed the issuance of an under other than honorable conditions discharge.  He was discharged accordingly on 27 March 1991.  

14.  There is no evidence that indicates he applied to the ADRB for an upgrade of his discharge.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

	a.  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.  

	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 request that his under other than honorable conditions discharge be upgraded to an honorable discharge was carefully considered. 

2.  His record shows he was charged with the commission of an offense (AWOL) punishable under the UCMJ with a punitive discharge.  He also accepted NJP for being AWOL. 

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

4.  He contends his youth played a role in his misconduct; however, he was over 21 years of age at the time of his offenses and there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service.  

5.  The Board applauds his accomplishments following his period of military service; however, based on his record of indiscipline, his overall record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and does not support an upgrade of his discharge to either a general or an honorable discharge.    
6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.  

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)                                         AR20140012922



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ABCMR Record of Proceedings (cont)                                         AR20140018439



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