IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090010585 


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, an upgrade of his under other than honorable conditions (UOTHC) discharge. 

2.  The applicant states, in effect, that while attending Auburn University his son had major heart surgery.  He requested leave and his leave was approved, but based on his school schedule he was unable to take the leave at that time and had to wait until the next school term.  He claims that he informed his first sergeant of his situation and he was told that it would be worked out.  However, his first sergeant was transferred and he was charged with being absent without leave (AWOL).  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of medical records from the Crawford W. Long Memorial Hospital of Emory University; a copy of a birth certificate from Medical Park Hospital; and 40 pages of Army service records in support of this 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 he enlisted in the Delayed Entry Program on 3 April 1979 and enlisted in the Regular Army on 8 May 1979 for a period of 3 years.  He completed the required training and was awarded military occupational specialty 91B (Medical Specialist).  Records further show the applicant served continuously until his discharge on 1 November 1990.  The highest rank he attained while serving on active duty was staff sergeant/pay grade E-6. 

3.  On 14 March 1990, court-martial charges were preferred against the applicant for five specifications of being AWOL.  He was AWOL from 4 January through 
15 March 1989, from 27 March through 8 June1989, 20 June through 30 August 1989, 21 September through 7 December 1989, and 1 January through 
30 January 1990.  He was also charged with five specifications of larceny totaling
$21,185.13. 

4.  On 4 April 1990, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UOTHC discharge, and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, the request was made of his own free will and he was not coerced into making the request.  The applicant acknowledged he understood that by submitting the request for discharge that he was guilty of the charges against him.  He also acknowledged that if his discharge request was approved, he could be 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 be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of an UOTHC discharge.  The applicant elected not to submit a statement on his own behalf.

5.  On 17 April 1990, the separation authority approved the applicant's request for discharge and directed that he receive an UOTHC discharge.  On 
1 November 1990, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 10 years, 7 months, and 11 days of creditable active military service and that he accrued over 300 days of lost time due to being AWOL.
6.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations

7.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

8.  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.  The applicant contends, in effect, that his UOTHC discharge should be upgraded.

2.  Evidence of record shows the applicant's request for separation under the provisions of chapter 10, Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

3.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  Evidence of record shows the applicant was charged with being AWOL for over 300 days, and of larceny of Government property totaling $21,185.13.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of Army personnel.  This misconduct and lost time also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

5.  The applicant was appropriately issued a UOTHC discharge based on the facts of the case.


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.

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)                                         AR20090010585



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ABCMR Record of Proceedings (cont)                                         AR20090010585



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