IN THE CASE OF:	

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080008890 


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, in effect, that his discharge, characterized as under other than honorable conditions (UOTHC), be change to a general, under honorable conditions, discharge.

2.  The applicant states, in effect, that he had 104 days of accrued leave with 60 days time left in service.  He was denied a hardship discharge following his father’s death on 11 September 1983.  He went AWOL (absent without leave) in October 1983 to take care of his mother and two sisters, ages 8 and 9.  He returned to the Army in August 1984.  He served 6 years honorably so his discharge should reflect his good service.  He adds that he was never afforded legal advice concerning his discharge.  He only recently learned that he could appeal his discharge. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of his father’s death certificate, and a copy of his two sisters' birth certificates (to show that they were dependent children at the time of his AWOL) in support of his request.

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's record shows he enlisted in the Regular Army on 20 June 1977, for 3 years, with an established expiration of term of service (ETS) of 19 June 1980.  He was trained as a Light Wheel Vehicle/Power Generation Mechanic, in military occupational specialty (MOS) 63B.  He was promoted to sergeant (SGT/E-5) effective 10 June 1980.  On 14 March 1980, he extended 
his service by 9 months.  He served until he was honorably discharged on 25 January 1981 for immediate reenlistment.  He reenlisted on 26 January 1981 for a period of 3 years, with an ETS date of 25 January 1984.

3.  Item 21, of the applicant's DA Form 2-1 (Personnel Qualification Record-Part II), shows that he was AWOL from 17 October 1983 to 6 May 1984 (203 days).

4.  Charges were preferred against the applicant on 8 May 1984 for being AWOL from 16 October 1983 to 7 May 1984.

5.  On 11 May 1984, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Department of Veterans Affairs (DVA) if a discharge characterized as UOTHC were issued.  He understood that there was no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished review of his discharge.  He realized that the act of consideration by either board did not imply that his discharge would be upgraded. He consulted with counsel and waived his rights and elected not to submit a statement in his own behalf.

6.  On 3 August 1984, the separation authority approved the applicant's request for discharge and directed that he be furnished an UOTHC discharge.  He was reduced from sergeant to private on the same date. 

7.  The applicant was discharged on 24 August 1984 in the pay grade of E-1.  He had a total of 6 years, 7 months, and 15 days of net active service and 203 days of time lost due to AWOL.

8.  Item 13 (Decoration, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), of his DD Form 214, shows that he was awarded the Good Conduct Medal (2nd Award).

9.  Item 17 (Days Accrued Leave Paid), of his DD Form 214, shows the entry "NONE."

10.  The applicant provided a copy of his father's death certificate which shows that his father died on 11 September 1983.  The applicant was not in an AWOL status at the time.  He also provided copies of his two sisters' birth certificates which show that they were dependent children at the time of the applicant's AWOL.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

12.  Army Regulation 635-200 sets forth the basic authority for 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.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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.

14.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant claims that he had 104 days of accrued leave with 60 days time left in service.  The applicant failed to provided evidence to show that he had accrued 104 days of leave on the date of his discharge and had 60 days, in effect, remaining in the service.  A review of his DD Form 214 shows that he was paid zero days of leave on the date of his discharge.  The evidence also shows that he was in an AWOL status past his scheduled ETS date of 25 January 1984. 

5.  The applicant claims that he was denied a hardship discharge following his father's death on 11 September 1983 and that he went AWOL in October 1983 to care for his mother and two sisters, ages 8 and 9.  There is no evidence in the available records, and he has provided none, to show that he applied for a hardship discharge prior to his father's death.  The evidence shows that he departed AWOL on 16 October 1983 and remained in an AWOL status until 6 May 1984.  There is no evidence in the available records, and the applicant has provided none, to show that he went AWOL to care for his mother and two sisters.  

6.  The evidence shows the applicant was awarded the Good Conduct Medal, 2nd Award, which reflects his 6 years of honorable service.  

7.  The applicant alleges that he was never afforded legal advice concerning his discharge.  The evidence shows that he consulted with counsel, waived his rights, where he could have asserted his innocence, and elected not to submit a statement in his own behalf.

8.  The applicant alleges that he only recently learned that he could appeal his discharge; however, on 11 May 1984, he acknowledged that he understood that there was no automatic upgrading of his discharge and that he must apply to the ADRB or the ABCMR if he wished a review of his discharge.  He also acknowledged that the act of consideration by either board did not imply that his discharge would be upgraded.  His acknowledgement was witnessed by legal counsel.

9.  There is no evidence in the applicant's records, and the applicant has provided none, to show that he applied for an upgrade of his discharge to the ADRB within that board's 15-year statute of limitations or to the ABCMR prior to his current application.

10.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  

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)                                         AR20080008890



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ABCMR Record of Proceedings (cont)                                         AR20080008890



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