IN THE CASE OF:
BOARD DATE: 17 May 2011
DOCKET NUMBER: AR20100026226
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 his under other than honorable conditions (UOTHC) discharge be upgraded to a hardship discharge.
2. The applicant states his son was taken from his wife while he was stationed in Berlin, Germany, and they would not let him have his son because he was in the Army. He then went absent without leave (AWOL). He was told by an Army lawyer that his discharge would be upgraded to a hardship discharge because of his circumstances.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 27 November 1978 and was awarded the military occupational specialty of indirect fire infantryman.
3. On 30 October 1979, court-martial charges were preferred against the applicant for being AWOL from 7 July to 16 October 1979.
4. On 1 November 1979, the applicant requested discharge for the good of the service in lieu of trial by court-martial. He submitted a statement with his request. In that statement he said he was waiting for his wife and son to join him in Berlin when he stopped getting mail from his wife. He went home on leave to find out what was going on to discover his wife had left him and his son had been taken from his wife. They would not give him his son since he was in the Army.
5. The applicant's request was approved by the appropriate authority. Accordingly, on 21 January 1980 he was discharged UOTHC.
6. Army Regulation 635-200 (Enlisted Separations) 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.
7. Army Regulation 635-200, paragraph 6-3, states that Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship. The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldiers (or spouses) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Under this provision for hardship discharge, parenthood of married service women and sole parenthood are the two conditions under which separation may be granted.
DISCUSSION AND CONCLUSIONS:
1. While the applicant may have had a hardship, Soldiers cannot simply leave to attend to a hardship situation.
2. Instead of returning to his unit at the end of his leave and submitting a request for a hardship discharge, the applicant opted to go AWOL. When he was returned to military control he could have gone to trial by court-martial and presented evidence that he was having a hardship. Instead he requested discharge in lieu of court-martial.
3. The applicant has not provided and his records do not contain any evidence to substantiate his child was taken from his mother and would not be given to the applicant.
4. In view of the foregoing, there is no basis for granting the applicants 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) AR20100026226
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ABCMR Record of Proceedings (cont) AR20100026226
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