IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011005 


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 (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he has not been able to have a stable career or take advantage of career opportunities that would help him better financially provide for his family.  He states it has been 20 plus years since his discharge.  He states his daughter will be attending college in 2011 but he cannot afford to help her.

3.  The applicant provides copies of:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 24 November 1987
* his enlistment medical examination
* 13 pages from his military personnel records
 
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 enlisted in the Regular Army on 8 March 1985 for a period of 
3 years, at the age of 19.  He completed the training requirements and he was awarded the military occupational specialty of 88M (Motor Transport Operator).  On 17 July 1985, he was assigned to the 548th Engineer Battalion at Fort Jackson, SC.

3.  The applicant's application for enlistment shows he had two brothers and they were born on 7 May 1967 and 4 August 1968.

4.  On 13 October 1987, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from on or about 5 April 1987 to 3 August 1987.

5.  On 2 November 1987, the applicant 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 court-martial.  He acknowledged he understood the offense he was charged with and he was:

* making the request of his own free will
* guilty of the offense for which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished a UOTHC Discharge Certificate

6.  In addition, the applicant was advised he could expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge and he:

* would be deprived of many or all Army benefits
* could be ineligible for many or all Veterans Administration (VA) benefits
* could be deprived of his rights and benefits as a veteran under both Federal and State laws
* acknowledged he understood he could expect to encounter substantial prejudice in civilian life as a result of being issued a UOTHC discharge

7.  The applicant submitted a statement on his own behalf.  He requested that he be given at least a general discharge.  His mother was suffering from a terminal illness and his presence was desperately needed.  After his mother's death he felt obligated to take care of the settling of her estate and making arrangements for the care and support of his younger brothers.  He expected to hear from the Army concerning his compassionate reassignment but became totally consumed by personal family problems.  He realized he made an error in the way he handled this matter but the error was not made with malicious or criminal intent but rather with the intention of helping his family.

8.  On 13 November 1987, the appropriate authority approved the applicant's request for discharge for the good of the service and directed he be issued a UOTHC Discharge Certificate.

9.  On 24 November 1987, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial with a UOTHC discharge.  He had completed 2 years, 8 months and 17 days active service.

10.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 10 February 1997, the ADRB reviewed his request and determined he was properly and equitably discharged and denied his request for an upgrade.

11.  References:

	a.  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 UOTHC discharge is normally considered appropriate.

	b.  Army Regulation 635-200 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.  

	c.  Army Regulation 635-200 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 his UOTHC discharge should be upgraded to an honorable because it has been more than 20 years and it still precludes him from taking advantage of certain career opportunities.  

2.  The applicant indicated in the statement submitted with his request for discharge that his mother's illness, his siblings, and other family problems contributed to him going AWOL.  However, based on the birth dates that he entered for his siblings at the time of enlistment they were age 19 and 20 at the time he went AWOL.  Further, there is no evidence that family situations contributed to his misconduct.

3.  The applicant states it has been 20 plus years since his discharge.   However, the ABCMR does not upgrade properly issued discharges based solely on the passage of time.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life as a result of being issued a UOTHC discharge.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

6.  The length of the applicant's period of AWOL shows his service to be unsatisfactory.

7.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to an honorable or general 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)                                         AR20100011005



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ABCMR Record of Proceedings (cont)                                         AR20100011005



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