IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100015412 


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 his discharge was inequitable because it was based on one isolated incident in 28 months of service during which he was subject to no other adverse actions.  He requested in writing and with proper documentation a hardship discharge due to adverse health and economic strains on his family.  His request had gone unanswered for many months and his family situation became dire.  He eventually went absent without leave (AWOL) to attend to matters at home.  When he turned himself in at Fort Dix, NJ, he was incarcerated for 3 days and given a UOTHC discharge without the opportunity for a hearing.

3.  The applicant provides no documents in support of his request.

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 28 May 1980.  After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman) and assigned for duty at Fort Bragg, NC.

3.  On 3 June 1981, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 10 May 1981 to on or about 13 May 1981.  

4.  A DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) the applicant was AWOL from 11 through 12 May 1981 and from 24 June 1981 through 30 May 1983.  

5.  On 31 May 1983, the applicant signed a Personnel Control Facility Information Sheet verifying he had returned to military control by surrendering at Fort Hamilton, NY.  On the same date he signed a Rights Warning Procedure/ Waiver Certificate indicating he had been informed of his rights and was willing to discuss the offense under investigation without a lawyer being present.  He provided the following statement:

I went AWOL from Fort Bragg because I have no father at home and a young sister who is delinquent.  The pressure on my mother was too much and she needed me home.  I requested a hardship discharge and never heard anything so I was forced to go AWOL.

6.  A DD Form 458 (Charge Sheet) shows, on 31 May 1983, he was charged with one specification of violation of the UCMJ, Article 86 (AWOL) for absenting himself without authority from on or about 25 June 1981 to on or about 31 May 1983.

7.  On 3 June 1983, he 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, he 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 a UOTHC discharge, and of the procedures and rights that were available to him.

8.  In his voluntary request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of lesser included offenses and 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.

9.  On 14 June 1983, the separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 794A (UOTHC Discharge Certificate).  On 6 July 1983, he was discharged accordingly.  He completed 1 year and 2 months of total active military service with 708 days of lost time.

10.  The record is void of documentation showing the applicant submitted a formal request for a hardship discharge.

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

12.  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 HD or a general discharge (GD) is authorized, a discharge UOTHC is normally considered appropriate.

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

2.  The evidence of record does not show, nor has the applicant provided evidence showing, that he formally requested or was improperly denied a hardship discharge.  In the absence of such evidence, this issue cannot be considered as a basis for granting the requested relief.  

3.  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.

4.  The applicant's record of service shows over 700 days of time lost due to being AWOL.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an HD or a GD.

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)                                         AR20100015412





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ABCMR Record of Proceedings (cont)                                         AR20100015412



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