BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100009023 


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

2.  He states his discharge was unjust because he was on emergency leave due to the death of his father.  He was in Virginia and he went to Fort Story to get paid. However, he was picked-up, sent to Fort Bragg, North Carolina, locked-up, and given an administrative discharge.  

3.  He 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.  The applicant’s records show he enlisted in the Regular Army in pay grade 
E-1 on 12 September 1978, for 3 years.  He completed training and was awarded military occupational specialty 94B (Food Service Specialist).  He was advanced to pay grade E-2 on 3 March 1979.  

3.  He was reported absent without leave (AWOL) on 27 March 1979 and dropped from the rolls of his organization on 26 April 1979.  He was apprehended by military authorities on 13 June 1979. 

4.  On 15 June 1979, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility Processing Company, Headquarters Command, XVIII Airborne Corps, Fort Bragg, North Carolina.  He was charged with one specification of being AWOL from 27 March 1979 to 13 June 1979.  

5.  On 20 June 1979, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be issued a UOTHC Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 20 June 1979, his unit commander recommended approval of his request for discharge with the issuance of a UOTHC Discharge Certificate.  The unit commander stated the applicant stated he was AWOL because he was unable to get a hardship discharge after his father died.  The applicant’s mother was well, but he wanted to get out and go home anyway.  The applicant also stated he did not like serving in Germany because of the cold climate.  The applicant desired to get out of the Army with a less than honorable discharge.  

7.  On 31 July 1979, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that a UOTHC Discharge Certificate be issued, and that he be reduced to pay grade E-1.

8.  He was discharged in pay grade E-1 on 14 August 1979 for the good of the service in lieu of trial by court-martial with a UOTHC discharge.  He was credited with 8 months and 17 days of net active service and 76 days of lost time.

9.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.
10.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred.  A UOTHC discharge was normally considered appropriate.  The separation authority could direct an honorable or general discharge if such a discharge was merited by the Soldier's overall record.

11.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, states a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, he is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  His contention his discharge was unjust because he was on emergency leave due to the death of his father has been considered; however, it does not support a change of his UOTHC discharge.  The evidence shows on 27 March 1979 his leave status was changed to AWOL.  He was dropped from the rolls on 26 April 1979.  Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial.  

3.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He told his unit commander that he desired to be discharged from the Army.  He also acknowledged he understood he could be furnished a UOTHC Discharge Certificate.  He advised his unit commander he went AWOL because he did not get a hardship discharge after his father died.  His mother was well, but he wanted to get out of the Army and go home anyway.  
4.  He has submitted no evidence to show he had personal problems and his chain of command failed to help him resolve them.  Even if he did have personal problems, there were many alternate remedies he could have used, but he chose not to do so.  Therefore, in the absence of evidence to the contrary, government regularity is presumed in the discharge process.

5.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.

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)                                         AR20100009023



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         A