IN THE CASE OF:	  

		BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100013204 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge (GD).

2.  The applicant states:

	a.  His reasons for leaving were beyond his control.  His mother had an ongoing illness (bone cancer) that she later died from.  He was the "baby boy" left to support the family.  His mother had no source of income and he had two small sisters at home to take care of.

	b.  His military career was fine the first few years, as shown in his record.  He received awards and served on a drill team at Fort Knox.

	c.  He has maintained a normal life, has no criminal background, and has been steadily employed.  He is trying to go to college, which his discharge is preventing.

	d.  He applied for an upgrade of his discharge in 1984 and submitted three applications in 2010.

3.  The applicant further states that when he was a private, his experience assigned to a Pershing missile unit in Germany scared him badly, affecting his mental state.  Dry fire of missiles was a frightening experience for him and he wanted to be away from the area altogether.

3.  The applicant provides copies of a program for his mother's funeral services, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and his résumé.

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 1 June 1978.  After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman) and assigned for duty at Fort Knox, KY.  On or about 3 December 1979, he was assigned for duty in Germany as a security guard with Battery A, 1st Battalion, 41st Field Artillery.

3.  The record shows the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the following offenses:

* on 12 October 1978 for failing to go at the time prescribed to his appointed place of duty on 10 October 1978
* on 26 January 1979 for absenting himself without authority from his unit from on or about 30 December 1978 to on or about 4 January 1979

4.  A DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) the applicant was AWOL from 30 December 1978 to 4 January 1979 and from 19 to 20 March 1979.  Item 21 also shows time lost from 16 May 1980 to 4 March 1982.

	a.  Item 27 (Remarks) shows he was apprehended and placed in Williams County Jail, Georgetown, TX, on 19 March 1979 and released on 21 March 1979 after paying a fine.

	b.  Item 35 (Record of Assignments) shows he was AWOL beginning 16 May 1980, dropped from the rolls on 16 June 1980, and returned to military control on 14 March 1982.

5.  A DA Form 2823 (Sworn Statement), dated 20 June 1980, shows the applicant departed on leave on 1 May 1980 to attempt to resolve marital problems.  The statement shows the applicant had indicated he was dissatisfied with the Army, had given his supervisors indications he would not return, and had not returned.

6.  A DD Form 458 (Charge Sheet) shows the applicant was charged with violation of Article 85, UCMJ, for absenting himself from Battery A, 1st Battalion, 41st Field Artillery, with intent to remain away therefrom permanently and he remained absent in desertion until apprehended on or about 4 March 1982.

7.  On 23 March 1982, the applicant was psychiatrically cleared for administrative action deemed appropriate by his commander.

8.  On 24 March 1982, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  Prior to submitting his request, 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 UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.

9.  In his voluntary request for discharge, the applicant indicated he understood by requesting discharge that the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request were 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

10.  On 5 April 1982, the separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 794A (Other than Honorable Conditions Discharge Certificate).  On 14 April 1982, he was discharged accordingly.  He completed 2 years and 18 days of active military service with 665 days of lost time.

11.  The record is void of documentation showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  The program for the applicant's mother's funeral services indicates she died on 21 April 1996.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 GD is authorized, a discharge UOTHC is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a 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 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 evidence of record does not support the applicant's request for an upgrade of his UOTHC discharge to a GD.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge 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 applicant offers conflicting statements regarding the reason he went AWOL in 1980.  He states, in effect, that he went AWOL due to his mother's illness.  Documentation he provides shows she died 14 years after his discharge, which casts doubt on this statement.  He also states, in effect, that he was motivated to go AWOL by fear of the operational environment.  The evidence of record, however, shows he had indicated dissatisfaction with the Army, had indicated he did not intend to return from leave, and that he did not return until he was apprehended.

4.  The applicant's record of service includes two nonjudicial punishments, confinement by a civil authority, 665 days of lost time, and shows he was charged with an offense punishable under the UCMJ with a punitive discharge.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100013204



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013204



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1