IN THE CASE OF:	  

	BOARD DATE:	  5 June 2008

	DOCKET NUMBER:  AR20080004601 


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 (UOTHC) be upgraded.

2.  The applicant states that he went absent without leave (AWOL) because his grandfather died in 1980 while he was in Korea.  His grandfather was like a father to him.  The Red Cross did not respond quickly enough for him to return to the States to attend his funeral.  He taught English to the Koreans during his      21 days AWOL to survive.  He is very sorry he went AWOL, but at the age of     19 he guesses he was not very mature.  He needs the medical benefits the upgrade would enable him to receive.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a Department of Veterans Affairs “Vet’s Identification Data” printout.

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 15 July 1960.  He enlisted in the Regular Army on 30 August 1978.  He completed basic training and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).

3.  On 10 August 1979, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), being disorderly in a public place; and for willfully destroying, by throwing a fire extinguisher through, one window.

4.  On 19 October 1979, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty; for failing to obey a lawful written order by having in his possession hard liquor in his billets; by being disorderly in command; by wrongfully communicating to another Soldier a threat to injure that Soldier; and by willfully disobeying a lawful order from his superior noncommissioned officer.

5.  The applicant arrived in Korea on or about 16 January 1980.

6.  On 23 January 1980, the applicant accepted NJP under Article 15, UCMJ, for being drunk and disorderly in a public place.

7.  The applicant departed AWOL from 1 through 7 April 1980 and was placed in confinement from 8 through 21 April 1980.  

8.  On 24 April 1980, the applicant completed a separation physical and was found qualified for separation.

9.  On 25 April 1980, the applicant completed a mental status evaluation.  He was found to be mentally responsible, to be able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

10.  The court-martial charge sheet and the applicant’s discharge packet are not available.

11.  On 29 April 1980, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, conduct triable by court-martial, with a discharge UOTHC.  He had completed 2 years, 7 months, and      9 days of creditable active service and had 7 days of lost time.
12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, 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.  A discharge UOTHC is normally considered appropriate.  

13.  Army Regulation 635-200, 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.  

14.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation       635-200, chapter 10, conduct triable by court-martial, was administratively correct and in conformance with applicable regulations.  

2.  It is noted that, for whatever reason the applicant went AWOL, that AWOL was not an isolated incident of misconduct.  Prior to departing AWOL he had received three Article 15s.  

3.  The applicant’s current medical concerns are unfortunate; however, it appears that the characterization of his service as UOTHC was a reasonable decision based upon the overall quality of his service.

4.  There is an insufficient basis on which to upgrade the applicant’s discharge.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  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.




 _   _______xxxxx___________
       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)                                         AR20080004601





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ABCMR Record of Proceedings (cont)                                         AR20080004601



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