BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100021594 


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 discharge (GD) 

2.  The applicant states:

a. his recruiter provided him false information to induce him to enlist in the 
Army that he later learned was only to fulfill his recruiter’s quota;

b. he did not believe a request for leave to resolve family issues would be
approved by his commander because of the relationship they shared;

c. he took it upon himself to depart absent without leave for 30 days, but
returned on his own accord once he resolved his family problems; and

d. he was never punished by court martial to his recollection and at the mere
age of twenty three years old, chose to be discharged without ever being advised of the effects UOTHC discharge.

3.  The applicant provides:

* two self authored statements
* DD Form 293 (Application for the Review of Discharge)
* Official Military Personnel File (OMPF) document extracts
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* character reference 
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 military record shows he enlisted in the Regular Army on 23 February 1980.  He was trained and served in military occupational specialty (MOS) 11B (Infantryman).

3.  His military record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions for the indicated offenses or reason:

* for being AWOL on 28 November 1977
* disobeying a lawful order on 1 August 1978
* for being AWOL from 5 July – 13 August 1979
* for being AWOL from 18 – 19 June 1979

4.  On 22 April 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL from 22 October 1979 to 10 April 1980.

5.  On 23 April 1980, the applicant underwent a mental status evaluation that showed his behavior and thought content were normal, that he was fully alert and oriented, that he had an unremarkable mood, that his thinking process was clear, and that his memory was good.  The examiner also determined the applicant was mentally responsible, met retention requirements, able to distinguish right from wrong, and had the mental capacity to understand and participate in separation proceedings.


6.  On 23 April 1980, 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 UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  In his request for discharge, the applicant acknowledged he understood that 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.  He also indicated that he understood he could face substantial prejudice in civilian life because of a UOTHC discharge and elected not to submit a statement on his own behalf.

8.  On 2 May 1980, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed he receive an UOTHC discharge.  On 19 May 1980, the applicant was discharged accordingly.

9.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant upon his discharge confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, by reason of Administrative Discharge Conduct Triable by Court-Martial.  It also shows he completed 2 years, 7 months, and 22 days of creditable active military service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

11.  The applicant provides a character reference from an individual who indicates he is a very good worker, good person, responsible, and a caring son who takes care of his aging parents and others when he can.  He also supports the applicant’s request for an upgrade of his discharge.

12.  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 discharge under other than honorable conditions is normally considered appropriate.

13.  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 applicant contends his UOTHC discharge should be upgraded to a GD.

2.  The evidence of record shows the applicant accepted NJP on four separate occasions.  It also confirms he was  charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL.  After consulting with legal counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

3.  The applicant’s period of AWOL rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

4.  In view of the foregoing, the applicant’s request should be denied.

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)                                         AR20100021594





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ABCMR Record of Proceedings (cont)                                         AR20100021594



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