IN THE CASE OF:	  

		BOARD DATE:	        20 November 2008

		DOCKET NUMBER:  AR20080014659 


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 he went absent without leave (AWOL) due to the illness of his son, and when he returned he elected to be discharged rather than to go back to Hawaii.  He states he is now ill and in need of medical care from the Department of Veterans Affairs (VA) and needs his discharge upgraded.

3.  The applicant provides a self-authored statement and two third-party statements 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 
(RA) and entered active duty on 22 February 1977 and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  He served for 2 years, 6 months, and 09 days until 30 August 1979, at which time he was honorably discharged in the rank of specialist four (SP4) for the purpose of immediate reenlistment.  On 31 August 1979, he reenlisted in the RA and began serving his last enlistment.  

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that he was promoted to SP4 on 22 September 1978 and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced to private/E-1 (PV1) on 30 May 1980.  His record shows that during his active duty tenure, he earned the Air Assault Badge and the Expert Marksmanship Qualification Badge with Rifle and Pistol Bars.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 13 February 1979, for being AWOL from on or about
16 January through on or about 12 February 1979.  His punishment for this offense was an official reprimand and 30 days of extra duty (suspended).  

5.  On 16 January 1980, the applicant departed AWOL from his unit in Hawaii.  He remained away for 82 days until returning to military control at Fort Knox, Kentucky, on 6 April 1980.

6.  On 16 April 1980, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 16 January 1980 through on or about 7 April 1980. 

7.  On 18 April 1980, 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, and of the possible effects of an 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.  In his discharge request, the applicant indicated that he understood that by submitting the request for discharge, he was acknowledging his 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.  


8.  The applicant further indicated in his discharge request 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 would be administratively reduced to the lowest enlisted grade, and that he could be ineligible for many or all benefits administered by the VA.  He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life because of an UOTHC discharge.  The applicant submitted a statement in his own behalf in which he indicated that he was pressured into joining the Army by his parents and other relatives, and that he was requesting discharge because he could not deal with the pressure of serving in the Army.  He stated that he wanted to be discharged to avoid making mistakes that could lead to either himself or someone else being hurt, which he did not want to be responsible for.  

9.  On 30 May 1980, 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 2 July 1980, the applicant was discharged accordingly.  The separation document
(DD Form 214) issued to the applicant upon his discharge confirms he completed a total of 3 years and 24 days of creditable active military service and that he accrued 82 days of time lost due to AWOL.   

10.  The applicant provides two third-party statements that attest to the fact the applicant went AWOL due to the illness of his son and that he is currently in bad health and in need of medical care from the VA.  

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  

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.  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 request that his UOTHC be upgraded was carefully considered.  However, although his current medical condition is unfortunate, this factor alone is not sufficiently mitigating to support granting the requested relief.  

2.  The evidence of record fails to show the applicant attempted to deal with his son’s illness through his chain of command or through other appropriate Army channels, and there is no compelling independent evidence submitted by the applicant that suggests illness of his son required his presence for the 82 days he remained AWOL.  In addition, in a statement he submitted with his discharge request, he indicated he was requesting discharge because he could no longer deal with the pressure of serving in the Army.  He made no mention of his son’s illness or other family problems.  

3.  The evidence of record does confirm that the applicant was charged with the commission of an offense 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 charge against him, or of a lesser included offense, 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.  

4.  The record also 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.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  As a result, his overall record of service clearly did not support the issue of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade now.  

5.  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.


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)                                         AR20080014659



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ABCMR Record of Proceedings (cont)                                         AR20080014659



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