IN THE CASE OF:	

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100010787 


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 that his under other than honorable conditions discharge be upgraded.

2.  The applicant states he has requested an upgrade of his discharge four or five times during the last 15 years but it has not been granted.  He contends that while on active duty he was granted emergency leave from his unit in the Republic of Korea to go home because of his wife's medical condition.  When he got to North Carolina he signed in at Fort Bragg and requested an assignment to the XVIII Airborne Corps.  He had the support of the command at Fort Bragg, but his unit in Korea would not release him.  In turn, the XVIII Airborne Corps would not release him to return to Korea.  Subsequently, he was listed as absent without leave (AWOL).  He was out-processed with an under other than honorable conditions discharge but he was promised it would be upgraded within 6 months of separation.

3.  The applicant provides do 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 9 September 1980, the applicant enlisted in the Regular Army in the rank of private first class, pay grade E-3.  He completed his initial training and was awarded military occupational specialty 91B (Medical Specialist).

3.  On 25 September 1981, the applicant was assigned for duty with the 36th Medical Company, located at Fort Bragg.  He departed this installation on 2 June 1982 for duty in the Republic of Korea.

4.  On 28 June 1982, the applicant was assigned to the 1st Battalion, 38th Infantry Regiment, 2nd Infantry Division, for duty as a medical aidman.

5.  Item 21 (Loss Time) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) indicates he was AWOL 132 days from 9 September 1982 to 
18 January 1983.  On 25 January 1983, charges were preferred against him for this period of AWOL.

6.  On 26 January 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 Uniform Code of Military Justice (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, chapter 10.

7.  In his request for discharge, the applicant acknowledged he understood 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.



8.  On 9 February 1983, the applicant was interviewed by the commander.  The applicant stated that he was aware of the nature of the interview and the consequences of a discharge under other than honorable conditions.  He desired elimination from the service under less than honorable conditions.  The applicant further stated that he was at home on emergency leave due to his wife's illness.  The applicant had contacted the Red Cross and other special actions services in an attempt to get his leave extended.  The applicant was given a direct order to report back to his unit.  Instead, he remained AWOL at his leave address.  The applicant surrendered to military authorities on 19 January 1983 at Fort Bragg, North Carolina.

9.  The applicant was placed on excess leave, and on 6 January 1984 the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 794A (Under Other Than Honorable Conditions).  Accordingly, on 16 January 1984, the applicant was discharged.  He had completed a total of 2 years, 11 months, and 28 days of creditable active duty service.

10.  On 29 April 1991, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

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

13.  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.



14.  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 that his under other than honorable conditions discharge should be upgraded because he was promised it would be upgraded within 6 months and he has asked several times for an upgrade.

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

3.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

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

5.  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)                                         AR20100010787



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ABCMR Record of Proceedings (cont)                                         AR20100010787



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