IN THE CASE OF:	  

		BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110003236 


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 discharge under other than honorable conditions (UOTHC) to a general discharge.

2.  He states that he was simply trying to look after his family.  He was not able to get assistance through the chain of command so he went absent without leave (AWOL) for humanitarian reasons to secure a safe living environment for his wife and children.  The AWOL incident was isolated in nature.  He was a fast burner and promoted ahead of his peers.  He received an Army Good Conduct Medal during his first enlistment.  He attempted to resolve this issue earlier, but never heard any outcome or received a decision.  

3.  He also states that at the time he was AWOL he was in the process of being shipped to Germany (unaccompanied assignment).  He was concerned about the way his wife was neglecting their young children (2 years and 1 year of age).  He tried to get some help through his chain of command, but his chain of command wasn't there for him.  He was forced to make a decision to care for his family.  He went AWOL and they moved back to Indiana where they moved in with his wife's parents.  This was a more safe and secure environment for the children.  He then turned himself in to authorities at Fort Knox, KY, to accept the consequences of his action.

4.  He further states this was an isolated incident of poor judgment, as far as the military was concerned, but he felt the humanitarian need for the safety and security of his children outweighed any consequences he would receive.  As it
turned out he was divorced about a year later and was awarded full custody of both children.  The remainder of his military service was honorable to the Army and his country.  He has been a productive citizen since his discharge.

5.  He provides a copy of his 1979 DD Form 214 (Report of Separation 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's records show he enlisted in the Regular Army (RA) in pay
grade E-1 on 29 June 1974, for 3 years.  He completed training and was awarded military occupational specialty 12B (Combat Engineer).  He was promoted to pay grade E-5 on 29 October 1976.

3.  He was honorably discharged on 3 May 1977 for the purpose of immediate reenlistment.  He reenlisted in the RA on 4 May 1977 for 4 years.

4.  On 14 January 1977, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being AWOL on 4 January 1977.

5.  On 4 August 1978, his request for a hardship discharge was disapproved.  The convening authority stated that the problems presented were certainly difficult and unfortunate; however, they did not meet the criteria outlined in Army Regulation (Personnel Separations - Enlisted Separations), paragraph 6-4.  The documentation submitted showed that positive efforts had not been made to alleviate the applicant's indebtedness status.  Information supporting his case seemed to reflect mismanagement of his finances.  Additionally, the incurred indebtedness when compared with military pay as opposed to salary earned from a civilian job was not of the magnitude that would justify separation from the 

service at that time.  It was recommended the command offer counseling and assist the applicant in utilizing other available sources of resolving his financial problems as well as other family related problems.

6.  He was reported AWOL on 16 August 1978.  He surrendered to military authorities on 13 November 1978 and was returned to military control.

7.  On 13 November 1978, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, Fort Knox, KY.  The applicant was charged with one specification of being AWOL from 16 August through 13 November 1978.

8.  On 16 November 1978, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be issued a UOTHC Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.

9.  In his statement, he stated that he joined the Army at 18 years of age because it was the only job to be found in the area.  His wife was pregnant with his second child.  Not quite a year after he reenlisted his family life started to deteriorate due to the fact his wife couldn't handle the schedule he had to keep.  Her nerves caused her to start hitting the oldest child with a baseball bat.  He went AWOL and started working an 8-hour day.  He went AWOL for the safety of his children.  He strongly felt that if he was released from the service his financial and family situation would improve greatly.

10.  On 16 November 1978, the Special Processing Company unit commander recommended approval of the applicant's request for discharge with the issuance of an UOTHC Discharge Certificate.  

11.  On 18 December 1978, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an UOTHC Discharge Certificate and reduction to pay grade E-1.




12.  He was discharged from active duty in pay grade E-1 on 1 February 1979 for the good of the service in lieu of trial by court-martial.  His service was characterized as UOTHC.  He was credited with completion of 1 year, 6 months, and 1 day of net active service and 89 day of time lost.

13.  On 30 March 1981, the Army Discharge Review Board (ADRB) advised him that his case was scheduled for review during the month of May 1981 in compliance with his request.  Because he failed to respond to his notification, his case was subsequently rescheduled for a records only type review.  However, there was insufficient evidence in his Official Military Personnel File in which to base a hearing on the records only.  Therefore, he was ineligible for further review by that Board.

14.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 10, in effect at the time, provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred.  A UOTHC discharge was normally considered appropriate.  The separation authority could direct an honorable or general discharge if such a discharge was merited by the Soldier's overall record.

15.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, the evidence of record shows his request for a hardship discharge was disapproved on 4 August 1978.  The convening authority stated that the documentation submitted showed that positive efforts had not been made to alleviate his indebtedness status.  Counseling and assistance were recommended in utilizing other available sources for resolving his financial and other family related problems.

2.  The evidence of records also shows he was charged with one specification of AWOL from 16 August through 13 November 1978.  Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged he understood he could be furnished a UOTHC Discharge Certificate.  He stated his problems and that he strongly felt his release from the service would greatly improve his financial and family situation.

3.  He submitted no evidence to show his chain of command failed to help him resolve any family or personal problems he was experiencing during this period of service.  The evidence shows his command reviewed his situation and recommended he receive counseling and assistance.  He also provided no evidence or a convincing argument to show his discharge should be upgraded.  His military records contain no evidence which would entitle him to an upgrade of his discharge to general under honorable conditions or fully honorable.  Therefore, in the absence of evidence to the contrary, government regularity is presumed in the discharge process.

4.  With regard to his contention that he earlier attempted to resolve this issue, the evidence of record shows he was advised by the ADRB in writing on 30 March 1981 of the decision in his case.   

5.  In view of the foregoing, there is no basis for granting 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 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)                                         AR20110003236





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ABCMR Record of Proceedings (cont)                                         AR20110003236



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