IN THE CASE OF:	

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20090001607 


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 upgraded.

2.  The applicant did not provide a statement with his request.

3  The applicant provides no documentation 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 27 February 1979.  He completed basic combat training at Fort Knox, Kentucky.  The applicant did not attend advanced individual training.  The applicant was in a trainee status when he went AWOL (absent without leave). 
3.  Item 21, of the applicant's DA Form 2-1 (Personnel Qualification Record, 
(Part II)), shows that he was AWOL from 18 May 1979 through 30 June 1981.

4.  Charges were preferred against the applicant on 2 July 1981 for being AWOL.

5.  On 2 July 1981, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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 Veterans Administration (VA) [now known as the Department of Veterans Affairs] if an UOTHC discharge were issued.  He waived his rights; however, he did submit a statement in his own behalf.  

6.  When asked why he went AWOL and what actions he had taken before going AWOL to solve the problem, the applicant stated, in effect, that he was AWOL from Fort Knox, Kentucky; that he was afraid to continue with the Army; and that he was homesick.  He stated that his mother was having kidney problems.  He further stated, in effect, that he spoke to his captain about his issues; however, he (captain) said he could do nothing.    

7.   On 13 July 1981, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  The separation authority also directed the applicant's reduction to the lowest grade; however, he was already at the lowest enlisted grade.

8.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 shows that he was AWOL from 18 May 1979 through 30 June 1981 for a total of 775 days or 2 years,         1 month, and 13 days.

9.  The applicant was discharged on  21 August 1981 in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He was furnished an UOTHC discharge. At the time of his discharge, the applicant had 4 months and 13 days of active service with 775 days of lost time.

10.  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.  


11.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service - in lieu of trial by court-martial.  An UOTHC discharge was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

12.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant went AWOL on 18 May 1979 and remained so absent until 30 June 1981.  He accumulated a total of 775 days of time lost due to AWOL.  

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

3.  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.  

4.  The applicant was appropriately furnished an UOTHC discharge.  He had a total of 4 months and 13 days of creditable service and 775 days of time lost due to being AWOL.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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)                                         AR20080005986



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ABCMR Record of Proceedings (cont)                                         AR20090001607



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