IN THE CASE OF:	  

		BOARD DATE:	    30 August 2011

		DOCKET NUMBER:  AR20110003614 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states he believes his discharge is inequitable because it is based on an isolated incident.  He contends that he received an injury to the top of his head and was in pain and disoriented.  He further states that he wants to know why his Department of Veterans Affairs (VA) benefits stopped in 2003.

3.  The applicant provides no additional documentation.

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.  On 5 February 1975, the applicant enlisted in the U.S. Army Reserve (USAR).  He served on active duty for training from 14 March to 27 July 1976 and completed his initial training and was awarded military occupational specialty (MOS) 76V (Storage Specialist).

3.  On 7 December 1977, the applicant was ordered to active duty and was subsequently assigned for duty in the Federal Republic of Germany.

4.  On 17 July 1979, the applicant was discharged for the purpose of immediate reenlistment on 18 July 1979.

5.  On 16 August 1979, the applicant departed Europe and was enrolled in MOS training for 64C (Motor Transport Operator).  Upon completion of training he was assigned to Fort Campbell, Kentucky.

6.  On 26 March 1980, the applicant was absent without leave (AWOL).  He was returned to military control on or about 17 July 1980 (113 days).

7.  On 28 July 1980, charges were preferred under the Uniform Code of Military Justice (UCMJ) for AWOL.

8.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

9.  On 29 July 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 a UOTHC discharge, and of the procedures and rights that were available to him.

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.



11.  On 18 August 1980, the separation authority approved the applicant’s request for discharge and directed that he be issued a UOTHC discharge.  On 
11 September 1980, the applicant was discharged accordingly.  He had completed a total of 2 years, 9 months, and 28 days of creditable active duty service and had 113 days of time lost.

12.  On 23 March 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days, is a dishonorable discharge and confinement for 1 year.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge 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.

	c.  Paragraph 3-7b provides that a general discharge 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded because it is based on an isolated incident.  He further states that he wants to know why his VA benefits stopped in 2003.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's isolated incident was a lengthy period of AWOL for which he could have been convicted by court-martial had his commander not accepted his request for an administrative discharge.

4.  The applicant underwent a mental status evaluation that determined he was mentally responsible and able to distinguish right from wrong.  There is no available documentary evidence in his military records showing or suggesting that he had been injured, or that any such injury had impaired his ability to know right from wrong.  Furthermore, there is no evidence showing that he mentioned any such injury in his request for administrative discharge.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His lengthy period of lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

6.  The applicant's concern about why his VA benefits were terminated is a matter that he should discuss with the VA.

7.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110003614





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ABCMR Record of Proceedings (cont)                                         AR20110003614



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