IN THE CASE OF: BOARD DATE: 10 December 2015 DOCKET NUMBER: AR20150005145 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 a general discharge. 2. He states prior to his discharge, he had taken all necessary courses and measures to comply with the Army’s Code of Conduct. He admits he took these actions in an effort to show he was rehabilitated so that his discharge could be upgraded to general as he was told. 3. He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty. 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 7 October 1992. He held military occupational specialty 54B (Chemical Operations Specialist). 3. The applicant’s disciplinary history under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) is not contained in his available military records. However, his records contain a DA Form 4126-R (Bar to Reenlistment Certificate), dated 16 February 1994, that lists the following: a. On or about 29 June1993, he absented himself from his place of duty. This was a violation of Article 86 of the UCMJ. He was given 7 days of extra duty. b. On or about 22 December 1993, he failed to go at the time prescribed to his appointed place of duty. This was a violation of Article 86 of the UCMJ. He was reduced to the grade of E-1, a forfeiture of $194.00 pay for one month, and extra duty and restriction for 14 days. c. He had written checks to the Army and Air Force Exchange Service with insufficient funds in his checking account thus incurring a debt estimated at over $300.00. 4. The charge sheet pertaining to his discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial is not contained in his available military records. However, his records contain: a. His voluntary request for discharge, dated 14 September 1994, which indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person. He understood if his request was accepted he could receive a discharge under other than honorable conditions and that by submitting his request, he was admitting he was guilty of the charges against him. He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life. The applicant elected not to provide a statement on his behalf. b. A memorandum, signed by the Staff Judge Advocate that shows he was charged with being absent without leave (AWOL) from 9 to 11 August 1994; wrongfully using marijuana on 3 August 1994; and wrongfully distributing one joint of marijuana on 3 August 1994. 5. On 28 September 1994, the appropriate authority approved his request and directed the issuance of a discharge under other than honorable conditions. 6. On 3 October 1994, he was discharged accordingly. His DD Form 214 shows he received an under other than honorable conditions character of service. It also shows he completed 1 year, 11 months, and 27 days of net active service during this period. 7. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 8. 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. 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 discharge under other than honorable conditions is normally considered appropriate. 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 argues, in effect, that his discharge should be upgrade because he took all the necessary courses to show he was rehabilitated. The fact that the applicant took courses to prove he was rehabilitated is commendable. However, completing several courses regardless of the subject area, alone is not a basis for upgrading his discharge. 2. The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The records further show he admitted he was guilty of being AWOL from 9 to 11 August 1994; wrongfully using marijuana on 3 August 1994; and wrongfully distributing one joint of marijuana on 3 August 1994. The records further show he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial. 3. His service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. He has provided insufficient evidence to show an error or an injustice exits in his record that would warrant upgrading his 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) AR20150005145 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005145 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1