BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100007353 


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 to an honorable discharge (HD).

2.  The applicant states the reason for his being absent without leave (AWOL) was to assist his family subsequent to an earthquake.  He understands he made wrong choices but he did it out of concern for his family.  He states he is now in need of veterans’ benefits and he needs an upgrade of his discharge to receive them.

3.  The applicant provides a self-authored statement.

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 after serving in the U.S. Army Reserve (USAR) from 7 June 1982 through 11 November 1987, he enlisted in the Regular Army on 12 November 1987.  He held and served in military occupational specialty (MOS) 88M (Motor Transport Operator) and private first class (PFC)/E-3 is the highest rank/grade he attained while serving on active duty.  His record documents no acts of valor or significant achievement.

3.  On 14 November 1989, the applicant departed AWOL from his unit at Fort Carson, CO.  He was dropped from the rolls (DFR) of the Army on 14 December 1989, and he remained absent for 234 days until returning to military control on
5 July 1990.

4.  On 13 July 1990, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 14 November 1989 through on or about 6 July 1990.

5.  On 13 July 1990, the applicant consulted with legal counsel and he was advised of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ.  He was also informed of the possible effects of a UOTHC discharge and of the rights and procedures available to him.

6.  After receiving legal counsel, he voluntarily requested 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.  In his request for discharge, he acknowledged that by requesting discharge, he was admitting he was guilty of the charge against him or of a lesser included offense therein contained that also authorized the imposition of a punitive discharge.  He also acknowledged his understanding that if his request for discharge were approved, he could receive a UOTHC discharge.  He further stated he understood that receipt of a UOTHC discharge could result in being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

7.  On 30 October 1990, the separation authority approved the applicant's request for discharge and directed he receive a UOTHC discharge.  On 
8 November 1990, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he completed 2 years,
4 months, and 8 days of creditable active military service during the period under review and he accrued 234 days of time lost due to AWOL during the period covered by the DD Form 214.

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

10.  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 UOTHC is normally considered appropriate.

11.  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.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge (GD) 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 HD.  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's contention that his discharge should be upgraded because he went AWOL to care for his family has been carefully considered.  However, although his situation may have been unfortunate, it is not sufficiently mitigating to support granting the requested relief.  There is no indication the applicant made any appropriate effort to resolve his situation through his chain of command or other Army channels available to assist in hardship situations prior to choosing to go AWOL.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The UOTHC discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of valor or significant achievement that would have supported the issuance of an HD or a GD by the separation authority at the time of his discharge or that would support an upgrade to an HD or a GD at this time.  As a result, his overall record of service is not sufficiently meritorious to support granting the requested relief.

4.  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)                                         AR20100007569



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Record of Proceedings (cont)                                         A