IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090011246 


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

2.  The applicant states, in effect, he broke his leg in basic training, he was hospitalized during graduation, and then he was sent home to recover.  He would like an upgrade of his discharge for Department of Veterans Affairs (VA) medical care benefits.

3.  The applicant provides no supporting documents 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 service medical and dental records are believed to be on permanent loan to the VA and are not available for the Board's review.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 18 September 1978 under the Delayed Entry Program (DEP) for a period of 6 years.  He was subsequently discharged from the USAR DEP on 10 January 1979 and he enlisted in the Regular Army (RA) on 11 January 1979 for a period of 4 years.

4.  He completed basic and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman).

5.  The applicant's record documents receipt of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), as follows:

	a.  on 16 February 1979, for willfully disobeying a lawful order from a superior noncommissioned officer (NCO) on 13 February 1979; and 

	b.  on 2 October 1979, for failing to go at the time prescribed to his appointed place of duty on 4 September 1979.

6.  He was absent without leave (AWOL) from 6 through 11 September 1979 (6 days), from 10 October through 3 December 1979 (55 days), from 4 December 1979 through 19 April 1980 (138 days), and from 25 April through 1 July 1980 (68 days).  Court-martial charges were preferred for these periods of AWOL.  The third AWOL period ended as a result of apprehension by civilian authorities.

7.  The applicant's unit commander submitted a statement that described the applicant's conduct and potential.  The applicant had been identified as a problem from the very beginning of his assignment to the unit.  The unit commander noted that the applicant could not read or write and described him as an illiterate Soldier who had no ambition or ability to learn.  He noted that the applicant was given two NJP's for AWOL, the first for 1 day and the second for 29 days.  The applicant's parents brought him back to the unit following his second period of AWOL and he was told that if he went AWOL again he would be administratively discharged.  The applicant went AWOL the next day.  The two periods of AWOL and the NJP's noted in the unit commander's comments are not recorded elsewhere in official record.

8.  On 3 July 1980, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted he could receive a discharge under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He acknowledged that such a discharge 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.

9.  Additionally, on 3 July 1980, the applicant requested to be placed in an excess leave status pending finalization of his separation, which was granted.

10.  On 19 August 1980, the applicant was discharged UOTHC under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

11.  The DD Form 214 as issued contains several significant errors.  It shows a date of entry on active duty of 7 June 1977 and a period of net active service this period of 2 years, 5 months, and 24 days and lists only two periods of lost time (totaling 61 days).  Items 11, 12d, 12e, 12h, 13, 14, and 15 contain the entry "see item 18 [Remarks], which states in pertinent part "SM [Service member] separated on temporary records and Soldier's affidavit.  DD Form 215 [Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)] will be issued to provide missing information.”  The separation program designator is shown as JFS (involuntary separation for the good of the service in lieu of trial by court-martial) and the reentry eligibility (RE) code is 3B.  No DD Form 215 appears to have been issued to correct the significant errors and omissions on the DD Form 214.

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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.  It also provides that an individual convicted of two or more offenses for which the authorized confinement totals 6 or more months, may be sentenced to a bad conduct discharge even though a bad conduct discharge is not otherwise authorized. 

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, shows that a voluntary discharge under the provisions of Army Regulation 635-200, Chapter 10 was to be afforded an SPD of KFS and carried an RE code of 4.

15.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(1) states, in pertinent part, "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15."  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."

16.  Army Regulation 635-200, paragraph 3-7b, states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

17.  Army Regulation 635-200, paragraph 3-7c states that a UOTHC discharge is issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of a UOTHC for discharges issued under the provisions of chapter 10 of this regulation

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he broke his leg in basic training, he was hospitalized during graduation, and he was then sent home to recover.  He would like an upgrade of his discharge to allow him to obtain VA medical care.

2.  The available record does not contain and the applicant has not provided any documentation to show that he broke his leg in basic training and he was sent home to recover; or that if this occurred, it was the reason for his persistent misconduct.

3.  The applicant served on active duty from 11 January 1979 through 19 August 1980, for a period of 1 year, 7 months, and 9 days (587 days).  During this period the applicant had documented periods of AWOL totaling 267 days, with a possibility of an additional 30 days of AWOL.  He was also on voluntary excess leave status for 48 days.  His DD Form 214 incorrectly shows a much longer period of service, and far fewer days of lost time.

4.  The applicant also received NJP's on at least two if not four occasions.  His service cannot be considered to have met the minimum standards for a GD or an HD.

5.  The applicant's reported illiteracy may have played a significant part in the applicant's failure to adjust to military life; however, it does not excuse his repeated incidents of misconduct and his extended periods of AWOL.

6.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

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)                                         AR20090011246



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ABCMR Record of Proceedings (cont)                                         AR20090011246


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