IN THE CASE OF: BOARD DATE: 24 October 2013 DOCKET NUMBER: AR20130003886 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 general discharge to an honorable discharge. 2. The applicant states: a. He feels he was forced into a decision by his commanding officer. He served his country very proudly and did all that was requested of him to defend this great nation. He feels he was forced into accepting this discharge as he was young and naïve. b. He was granted permission to take leave as shown in the documents provided. After the leave was granted, he requested permission to take an earlier flight the evening before and after his duties were completed for the day. He was told by Staff Sergeant (SSG) Txxxx that it would be okay and he would change the paperwork. When SSG Txxxxx went to the commanding officer the next day to change the leave, Captain (CPT) O'xxxx stated it wasn't acceptable to him. He was then considered absent without leave (AWOL). He had no knowledge of this as he was at home in New York with his family. When he returned on the date he was supposed to, his barracks was packed and he was charged the absolutely insane charge of being AWOL. c. CPT O'xxxx took command of their unit about two months after his assignment and was against all of the original members of the unit. CPT O'xxxx had a personal vendetta against many Soldiers who were in his command. This man showed no leadership qualities and was more overzealous to show his power than to build morale. He believes CPT O'xxxx had a personal issue with him as every opportunity he got he would single him out for extra duties or just embarrass him. He constantly showed the man respect and carried out his wishes. d. He personally believes CPT O'xxxx used this AWOL incident to get him out of the Army because he disliked him. CPT O'xxxx personally told him that if he didn't accept this he would be arrested for this incident, put in jail, and then dishonorably discharged. At the age of 21 years this was a lot to hear and he was scarred, so he agreed and was discharged. But, in no way did he agree with this decision. e. This has been bothering him for many years and he thinks he deserves the peace of mind that he has served his country honorably and that his country appreciated and respected the service he did for it. He has a very successful life raising his children and providing a beautiful home in this great country. He is not looking for more than to clear up this chapter. 3. The applicant provides copies of a DA Form 4856 (General Counseling Form), his DD Form 214 (Certificate of Release or Discharge from Active Duty), and two character reference letters. 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 in April 1969 and enlisted in the Regular Army (RA), in pay grade E-1, on 3 March 1993. On the date of his enlistment in the RA, he was 23 years and 11 months of age. He completed training and he was awarded military occupational specialty 13M (multiple launch rocket system crewmember). He was advanced to pay grade E-2 on 3 September 1993. 3. On 20 November 1993, he was notified of suspension of his installation driving privileges pending the resolution of an intoxicated driving charge. On the same day, he acknowledged receipt of the notification. 4. On 16 December 1993, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for operating a vehicle while drunk on 20 November 1993. He did not appeal the punishment. 5. On 11 July 1994, he was counseled for being AWOL from 27 June to 11 July 1994, reporting to work late, driving on post on a restricted license, receiving an Article 15 for a DUI (driving under the influence), and the recommendation for chapter 14 separation. 6. On 19 July 1994, he accepted NJP under Article 15, UCMJ, for being AWOL from 27 June to 11 July 1994. He did not appeal the punishment. 7. On 1 August 1994, the applicant's company commander notified the applicant that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of a serious offense. The company commander stated the reasons for the proposed action were the receipt of two Field Grade Article 15s for a DUI and being AWOL. He advised the applicant of his rights and recommended a general discharge. 8. On 4 August 1994, after consulting with counsel, the applicant acknowledged receipt of the contemplated action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c. He also acknowledged he understood he could receive a general discharge and the effects of such a discharge in civilian life. He waived his rights and elected not to submit a statement in his own behalf. 9. On 8 August 1994, the applicant's battalion commander recommended his separation from the service under the provisions of Army Regulation 635-200, paragraph 14-12c. He recommended a general discharge. 10. On 10 August 1994, the separation authority approved the applicant's request for discharge for misconduct and directed the issuance of a general discharge. 11. He was discharged accordingly on 17 August 1994, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct. He completed 1 year, 5 months, and 15 days of net active service. 12. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 13. He provided three character reference letters wherein the individuals stated their support of his request for an upgrade of his discharge. The individuals also attested to the applicant being an upstanding civilian and a very proud family man. 14. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Chapter 14 – established the policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. The issuance of a discharge under other than honorable conditions was normally considered appropriate. The separation authority could direct a general discharge if such was merited by the Soldier's overall record. b. Paragraph 3-7a - 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. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant was twice counseled and punished under Article 15 for a DUI and for being AWOL. Separation processing was initiated against him by reason of commission of a serious offense. The separation authority approved his discharge and he was discharged accordingly on 17 August 1994. 2. There is no evidence of record and he provided insufficient evidence to show he was innocent of the offense. Upon notification of his pending separation and after consulting with counsel, he acknowledged he understood the basis for the contemplated separation action and its effects. He waived his rights and he elected not to make a statement. 3. His contention that his youth made him do the wrong thing and impacted his ability to serve successfully is without merit. He was 23 years and 11 months of age when he enlisted in the RA. There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service. 4. It appears that based on his overall service record, the discharge authority directed the issuance of a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions. 5. His misconduct diminished the quality of his service below that meriting a fully honorable discharge and he has submitted neither probative evidence nor a convincing argument that shows his general discharge was inequitable. He was properly separated for misconduct. 6. In the absence of evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 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) AR20130003886 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130003886 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1