IN THE CASE OF:	  

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080010348 


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 under other than honorable conditions (UOTHC) discharge be upgraded.    

2.  The applicant states, in effect, that his overall record of service was honorable and that he only went absent without leave (AWOL) to search for his 10 year old son who had run away from home while he and his wife were experiencing family problems.   

3.  The applicant provides separation documents (DD Forms 214), dated 11 July 1979 and 15 November 1983, in support of his application.  

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 that he initially enlisted in the Regular Army and entered active duty on 11 January 1977, and he was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  On 11 July 1979, he was honorably discharged for the purpose of immediate reenlistment, and on 12 July 1979, he reenlisted for six years and began serving the enlistment under review. 

3.  The applicant's record shows that he was promoted to staff sergeant (SSG) on 18 August 1982, and that this was the highest rank he attained while serving on active duty.  It also shows that he earned the following awards during his active duty tenure:  Army Commendation Medal (ARCOM); Army Achievement Medal (AAM); Army Good Conduct Medal (2nd Award); Army Service Ribbon (ASR); Overseas Service Ribbon (OSR); Noncommissioned Officer Professional Development Ribbon (NCOPDR) with Numeral 2; Senior Parachutist Badge, Parachutist Badge; and Expert Infantryman Badge (EIB).  His record documents no acts of valor or significant achievement.  

4.  On 5 July 1983, the applicant departed AWOL from his unit at Fort Bragg, North Carolina, and on 4 August 1983, he was dropped from the rolls (DFR) of the organization.  He remained away for 87 days until returning to military control on 30 September 1983.  

5.  On 6 October 1983, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 5 July through on or about 30 September 1983.  

6.  On 7 October 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum punishment authorized under the UCMJ, the significance of a bad conduct or dishonorable discharge, and of the possible effects of an under other than honorable conditions (UOTHC) discharge.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  

7.  In his discharge request, the applicant acknowledged his understanding that by requesting discharge, he was admitting guilt of the charge against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  He also indicated that he understood that if his request for discharge were approved, he could receive an UOTHC discharge, which could result in his being deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could expect to encounter substantial prejudice in civilian life because of an UOTHC discharge; and he finally elected not to submit a statement in his own behalf.  

8.  On 13 October 1983, the applicant's unit commander completed a statement and interview extract in which he stated that the applicant indicated the reasons for his AWOL were personal and the unit commander indicated the applicant had become disillusioned with the military and that his retention in the military would not be in the best interest of the Army.  

9.  On 3 November 1983, the separation authority approved the applicant's discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service, and directed the applicant receive an UOTHC discharge.  On 15 November 1983, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 6 years, 7 months, and 10 days of creditable active military service, and that he accrued 87 days of time lost due to being AWOL.  

10.  There is no indication in the record that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.  

11.  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.  An UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he only went AWOL in order to search for his son who had run away, and that his discharge should be based on his overall record of service was carefully considered.  However, there is insufficient evidence to support his claims.  

2.  The evidence of record is void of any indication that the applicant ever attempted to seek the help or resolve his marital difficulties and associated problems with his son through his chain of command or from any other Army family assistance agency prior to going AWOL. 


3.  Further, the applicant failed to submit a statement in his own behalf outlining any mitigating factors with his discharge request.  In addition, an interview statement prepared by his commander during his discharge processing simply indicated that the applicant indicated the reasons for his AWOL were personal and that the applicant had become disillusioned with the military.  

4.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charges against him, or of lesser included offenses, that also authorized the imposition of a bad conduct discharge.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

5.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in his receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance, and absent any documented acts of valor or significant achievement, his overall record of service did not support the issue of a GD or HD by the separation authority at the time, nor does it support an upgrade now.  The applicant's prior honorable service is already accurately documented in 1979 separation document and does not support a change to the character of his final discharge.  

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement or that would support amendment of the original Board decision in this case.  

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)                                         AR20080010348



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ABCMR Record of Proceedings (cont)                                         AR20080010348


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