IN THE CASE OF:
BOARD DATE: 26 July 2011
DOCKET NUMBER: AR20110001745
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 discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge (HD).
2. The applicant states his discharge should be changed due to the fact that his character has changed. He was young and immature when he was absent without leave (AWOL) due to concerns about the well-being of his family. He injured his knees while on active duty and needs the upgrade to receive medical benefits.
3. The applicant provides a copy of 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 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 20 June 1979. At the time of entry he was 18 years old, married, and had a 4-month old child.
3. On 1 October 1979, the applicant received nonjudicial punishment for 19 days of AWOL during his advanced individual training.
4. The applicant completed training and was awarded military occupational specialty 76D (Materiel Supply Specialist).
5. On 21 November 1979, he was denied advancement to E-2.
6. On 12 March 1980, the applicant was AWOL and remained absent until 22 April 1980. Court-martial charges were preferred for this period of AWOL.
7. On 28 April 1980 after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge under the provisions of Army Regulation
635-200 (Active Duty Enlisted Administrative Separations), chapter 10. He acknowledged he was guilty of the charges or lesser-included charges and that if the request were accepted he could receive a discharge under other than honorable conditions and be furnished a UOTHC Discharge Certificate. He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.
8. The discharge authority approved the discharge and directed the applicant be separated UOTHC.
9. On 2 June 1980, the applicant was discharged UOTHC under Army Regulation 635-200, chapter 10. He completed 9 months and 13 days of creditable service with 61 days of lost time.
10. There is no evidence the applicant was considered for or received any awards or favorable recommendations. His available medical records contain entries showing treatment only for blisters.
11. On 28 January 1986, the Army Discharge Review Board denied the applicant's request for upgrade of his discharge.
12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The regulation in effect at the time provided the following:
a. An HD is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.
b. A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
c. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct or in lieu of trial by court-martial when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army.
d. 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 in accordance with the provisions of chapter 10 at any time after the charges have been preferred. A discharge UOTHC is normally considered appropriate.
13. The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice. A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.
DISCUSSION AND CONCLUSIONS:
1. The applicant states his discharge should be changed due to the fact that his character has changed. He was young and immature when he was AWOL due to concerns about the well-being of his family. He injured his knees while on active duty and needs the upgrade to receive medical benefits.
2. 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. There is no indication the request was made under coercion or duress.
3. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the offense for which he was discharged and is appropriate for the applicant's overall record of military service.
4. The applicant's contention that he was young and immature at the time of his discharge is not in and of itself sufficiently mitigating to warrant relief.
5. By his own admission, the applicant does not believe there was an error or injustice in his discharge and he submitted no evidence to substantiate his 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 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.
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