BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140019113 


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 a general discharge.

2.  He states in a personal letter to the Board:

   a.  In 1979, he chose to join the Army at the age of 19 instead of going off to college.  He wanted to serve his country and establish a future for himself and his future wife.  After completing Advanced Individual Training (AIT) he started his Army career as a Recruiter's aide while on 30 days leave in his home town.  He was very proud of his Army uniform and it was his privilege to go out into the local high schools and speak with the students about the benefits of becoming a Soldier and the honor of serving the country.  Once he reached his first assignment, he was on the fast track to success.  He was quickly selected as Soldier of the Month, and then went on to be selected as Soldier of the Quarter.  As a private first class (PFC), he was handpicked to be the company commander's driver, which was an addition to his work load, but it was a wonderful opportunity for him.  Within 24 months of service he was promoted to sergeant and selected as Noncommissioned Officer (NCO) of the Month.  

   b.  He married his high school sweetheart and they started a family.  They had a daughter about 5 years into his military career.  He was eligible for promotion to staff sergeant at the time his life started to crumble around him.  He went home on emergency leave because his wife had developed a drug addiction problem in his absence.  Their baby girl was only 2-years old.  His wife was facing a 2-year prison term.  He panicked and was distraught over the magnitude of having to deal with his wife's addiction and her prison sentence; the welfare of their child and him being separated from them as these events transpired.  So, he made a very costly and rash decision to stay on leave longer than he should have to be with his family.  He failed to take the proper steps required to be released from the service or to be considered for a hardship transfer.  He was AWOL for a month before his father drove him to Fort Bragg, NC to turn himself in.  He was taken into custody.  He was given a choice of a court-martial or discharge in lieu; he took the lesser of the two.

   c.  That immature decision has haunted him every day since.  The tremendous sense of failure and the loss of his future in the Army with all his hopes and dreams was devastating.  He ultimately lost everything, including his family.  He was embarrassed and ashamed for a very long time after that and his life was very hard and dark.  Over the years he remarried and had more children and was determined to pick himself up and make a life for them.  He wanted to be able to provide for his wife and kids.  He is the type of person who loves new challenges and he started working under an executive chef.  That experience was his turning point in life and also his saving grace.  He worked in the food service industry for 19 years.  He also works in real estate and is a successful property owner.  His personal goal is to be able to leave something behind for his children.  The positive events in his life he now attributes to the time he served in the Army and the lessons he learned.  

   d.  He knows he is not the first person to do what he did and he doesn't know what his chances are of getting the discharge upgraded, but he is making this request because he is compelled to do so.  He believes in the saying, "You have not, because you ask not."  He is asking the Board to read his letter and see that he is no longer that boy who had a terrible lapse in good judgment.  He wants to thank the Board for their time and consideration in this matter.

3.  The applicant provides a self-authored statement; and character reference letters from his daughter, three friends, and two former employers in support of his application.

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 was born on 10 November 1960.  He enlisted in the Regular Army on 7 January 1980 at the age of 19 years, 7 months, and 28 days.  The highest rank/pay grade he attained while serving on active duty was 
sergeant/E-5.  However, at the time of his discharge he held the rank/pay grade of private/E-1.

3.  The applicant was AWOL from his unit from 1 July until 11 September 1985 when he surrendered himself to military authorities.

4.  His record contains a DD Form 458 (Charge Sheet), dated 13 September 1985, 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 1 July 1985 to on or about 11 September 1985.

5.  On 18 September 1985, 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.  He waived his right to submit a statement in his own behalf.

6.  On 18 September 1985, he was placed in an excess leave status for an indefinite period pending the outcome of his request for discharge.

7.  His chain of command recommended approval of his request and recommended issuance of an under other than honorable conditions discharge.
8.  On 16 October 1985, 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 6 November 1985, 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 5 years, 7 months, and 12 days of creditable active military service and had 80 days of lost time.

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.  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 any type of family matters that negatively impacted his ability to Soldier.

12.  The applicant provides character reference letters from his daughter, three friends, and two former employers who all hold him in high regard.  They attest that he is an honest, decent, generous, hardworking family man who is a pillar of his community.  He is also very dependable and has a good work ethic.

13.  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 3-7b 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.  He contends his misconduct was the result of his young age and immaturity.  His record shows he was nearly 20 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 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.  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.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  Further, his discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, there is insufficient evidence to support an upgrade of his discharge.  One's post-service accomplishments do not negate one's record of indiscipline. 

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)                                         AR20140019113



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ABCMR Record of Proceedings (cont)                                         AR20140019113



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