IN THE CASE OF: BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160004865 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160004865 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160004865 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 under other than honorable conditions (UOTHC) discharge. 2. The applicant states, in effect, he was on excess leave due to marital issues and an alcohol problem. His life has been turned around and he feels the time is right to request an upgrade of his discharge. a. He was an alcoholic and started drinking at the age of 11. He tried many times to quit on his own and it always ended in failure. b. At the time of his excess leave, he went home in San Francisco to fire his divorce attorney; the 1989 Loma Prieta earthquake struck while he was there. He could not find his mother for over a week and he had his car impounded. He got scared about being absent without leave (AWOL) and the circumstances only prolonged his return. c. Drinking is not an excuse for the decisions he made throughout his life. However, alcoholism is a disease. He did not seek treatment for his problems until February 2003; he completed a 6-month program in August 2003. He has been sober now for 13 years. d. Since being sober he has become a proactive member of society; received his General Equivalency Diploma (GED) and obtained associate's, bachelor's, and master's degrees. Also, he has been employed for over two years with the San Joaquin County Human Services Agency. e. He realizes that granting an upgrade to his discharge is not an easy task. He believed an under honorable conditions (general) discharge was the discharge he had received. His mind was so cloudy and he was afraid and ashamed. f. He always performed his job well on active duty. When he served, the Skills Qualification Test (SQT) was still around and he scored higher than E-5s with five years of service on the test; however, he was passed over for promotion for people who failed the test. He would turn to drinking during situations like that instead of correcting behaviors or attitudes that led to him not being promoted or commended for good work. He no longer thinks that way or acts out in immature ways. g. He waited to ask for an upgrade because he felt he needed to prove that his behavior, thinking, and attitude had changed. He only hopes the Board will consider his request. He is proud to have served in the Army; however, he is not proud of how his service ended. He is asking for an upgrade to receive any type of veterans' benefits. Due to his active duty time being less than two years, he does not qualify for any veterans' benefits. He is hoping to erase the black eye on his past. 3. The applicant provides a self-authored statement and copies of his: * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 April 1990 * California State University, Stansilaus, Master of Business Administration Diploma * New Directions Treatment Program Certificate of Completion. 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 10 May 1988. He completed his initial entry training (IET) and was awarded military occupational specialty 13F (Fire Support Specialist). Following the completion of IET, he was assigned to Fort Carson, CO. 3. A DA Form 4187 (Personnel Action), dated 29 September 1989, shows his duty status was changed from present for duty (PDY) to AWOL, effective 23 September 1989. 4. A DA Form 4187, dated 23 October 1989, shows the applicant's duty status was changed from AWOL to dropped from the rolls (DFR) of the Army, effective that same day. 5. A DA Form 4187, dated 28 December 1989, shows the applicant's duty status was changed from DFR to PDY, effective 11 December 1989, upon his surrender to military authorities at Fort Ord, CA. 6. A DD Form 458 (Charge Sheet), dated 15 December 1989, shows the applicant was charged with violating Article 86 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 23 September 1989 through on or about 11 December 1989. 7. The applicant's complete separation processing packet is not available for review. However, his record shows he consulted with legal counsel on 15 December 1989 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 a UOTHC discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. 8. In his request for discharge, the applicant indicated he understood that if his request for discharge was accepted, he may be discharged under conditions other than honorable. He indicated he had been advised as to the possible effect of a UOTHC discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 9. The separation authority approved the applicant's request for separation in lieu of trial by court-martial on 26 March 1990 and directed that he be separated under the provisions of Army Regulation 635-200, chapter 10, and that his service be characterized as UOTHC. 10. The applicant was discharged on 9 April 1990. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation  635-200, chapter 10, and his service was characterized as UOTHC. 11. The applicant's record is void of evidence that shows he reported or was treated for alcohol or any other form of substance abuse during his period of service. 12. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. c. 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, the 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 furnished an individual who was discharged for the good of the service. 2. The Loma Prieta earthquake occurred on 17 October 1989, affecting the San Francisco and Monterrey Bay regions of California. DISCUSSION: 1. The applicant requests an upgrade of his UOTHC discharge. He contends he was AWOL in California due to marital problems when the Loma Prieta earthquake happened, which prolonged his unauthorized absence. 2. The applicant was AWOL for 79 days. He was charged with the commission of a serious offense punishable under the UCMJ with a punitive discharge after he surrendered to military control. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10. 3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant's voluntary request for discharge to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 4. The applicant's record shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication his request for discharge was made under coercion or duress and there is no evidence of procedural errors that would have jeopardized his rights. The separation authority determined his overall record of service did not rise to the level required for a general or an honorable discharge. 5. The applicant's post-service conduct is noted; however, post-service conduct alone is not normally a basis for upgrading a discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004865 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2