IN THE CASE OF:	  

		BOARD DATE:	    13 September 2011

		DOCKET NUMBER:  AR20110004445 


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 to a general discharge.

2.  The applicant states, in effect, that:

   a.  His discharge was unjust because his chain of command failed to follow its own regulations, Federal law, and Constitutional requirements.

   b.  He was having marital problems at the time and he spoke with his sergeant, chaplain, and commander about his problems; but they were not interested.  He went absent without leave (AWOL) more than 180 days to take care of his problems.  He could not wait for official permission.  

   c.  He was kicked out of the military with a UOTHC discharge because his chain of command could not get a court-martial conviction.  He was not properly counseled and his chain of command abused its authority when they discharged him.

   d.  His conduct and efficiency ratings were mostly good, his nonjudicial punishments (NJP) show only minor isolated offenses, and his discharge was severe when compared to today's standards.  He had less than a year left on his enlistment.
   
   e.  His ability to serve was impaired by marital, family, personal, and financial problems.  
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 12 February 1980, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapon Crewman).

3.  On 8 May 1980, the applicant departed Fort Benning, Georgia for duty in the Republic of Korea (ROK).

	a.  On 1 June 1980, he was assigned as an ammunition bearer with the 1st Battalion, 23rd Infantry Regiment.

	b.  On 24 January 1981, he accepted NJP for making purchases at the Post Exchange and Class Six Store in excess of his authorized limits.

	c.  On 26 May 1981, he departed the ROK and returned to the United States.

4.  On 1 July 1981, the applicant was assigned duty as an assistant gunner with the 2nd Battalion, 502nd Infantry Regiment, located at Fort Campbell, Kentucky.

5.  On 1 September 1982, the applicant went AWOL.  He was subsequently apprehended and returned to military control on or about 27 June 1983.  He had been AWOL approximately 300 days.

6.  On 6 July 1983, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for being AWOL.


7.  On 7 July 1983, 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.  He indicated he was making the request of his own free will he had not been subjected to any coercion whatsoever by any person.  He was advised of the implications that were attached to his request.  By submitting the request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge.

8.  In his request for discharge, the applicant indicated that he understood that if his 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 12 July 1983, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of court martial, and directed the issuance of a UOTHC discharge.  On 25 July 1983, the applicant was discharged accordingly.  He had completed a total of 2 years, 7 months, and 14 days of creditable active service and he had 300 days of lost time.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for being AWOL more than 30 days resulting in apprehension, is a dishonorable discharge and confinement for 1 year and 6 months.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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 UOTHC discharge is normally considered appropriate.



13.  Army Regulation 635-200, 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 was unjust resulting in punishment that was too harsh.  He argues that he was having marital, family, personal, and financial problems at the time.  Furthermore, his offenses were minor and isolated.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He voluntarily requested discharge, and in so doing admitted guilt to the charge of AWOL.  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 that extended to almost a year (300 days).  He was apprehended and returned to military control.  He could have been convicted by a court-martial had his commander not accepted his request for an administrative discharge.

4.  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.

5.  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)                                         AR20110004445



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ABCMR Record of Proceedings (cont)                                         AR20110004445



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