IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090011095 


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

2.  The applicant states that while on leave around June 1982, he was involved in a vehicle accident.  He was hospitalized and medically evacuated to the hospital at Travis Air Force Base.  The Army incorrectly identified him as being absent without leave (AWOL).  He suffered extensive head injuries and was unable to make proper decisions or to advocate for himself.  His characterization of service UOTHC was due to excessive leave, which was unfair and unjust.  He contends that he suffered extreme traumatic brain injury as a result of the accident.

3.  The applicant provides no additional documentation 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.  On 1 December 1981, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  On 18 March 1982, the applicant departed Fort Leonard Wood, Missouri, for duty in the Republic of Korea.  On 5 April 1982, he was assigned for duty as a rifleman with the 1st Battalion, 38th Infantry Regiment.

4.  On 15 September 1982, the applicant was assigned to Fort Ord, California.

5.  On 28 September 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 14 August 1982 to on or about 15 September 1982.  The punishment included reduction to pay grade E-1 and a forfeiture of $250.00 pay per month for 2 months.

6.  On 16 October 1982, the applicant was assigned for duty as a rifleman with the 2nd Battalion, 32nd Infantry Regiment, located at Fort Ord, California.

7.  On 12 November 1982, the applicant accepted NJP for dereliction of duty for failing to sign in for guard duty.  The punishment included 14 days of extra duty and 7 days of restriction.

8.  On 21 January 1983, the applicant accepted NJP for AWOL (6 days) and for failure to go at the prescribed time to his appointed place of duty.  The punishment included reduction to pay grade E-1 (suspended) and a forfeiture of $300.00 pay per month for 1 month.

9.  On 29 March 1983, the applicant was AWOL.

10.  On 15 April 1983, the applicant was apprehended by civil authorities and confined pending investigation for grand theft auto.  He was returned to military control on 20 April 1983.

11.  On 27 July 1983, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the period on or about 25 April 1983 to on or about 19 July 1983 (85 days).

12.  On 27 July 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

13.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

14.  On 15 August 1983, the separation authority approved the applicant’s request for discharge and directed that he be issued a UOTHC discharge certificate.  On 24 August 1983, the applicant was discharged accordingly.  He had completed a total of 1 year, 3 months, and 9 days of creditable active military service and had accrued a total of 165 days of time lost due to AWOL and confinement.

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

16.  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.  A discharge UOTHC is normally considered appropriate.

17.   Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

18.  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.

19.  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 he suffered a traumatic brain injury from an automobile accident that resulted in his being incorrectly charged as AWOL.  He further contends that his discharge should be upgraded.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  There is no available evidence of record showing that the applicant had been involved in an automobile accident or that such an accident resulted in his suffering a traumatic brain injury.  Furthermore, there is no evidence showing that the charges for AWOL were in error.  

4. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20090011095



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ABCMR Record of Proceedings (cont)                                         AR20090011095



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