IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110004985 


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 an honorable discharge (HD). 

2.  The applicant states shortly after joining the military he got married, he was on orders for Korea, and he went absent without leave (AWOL), because he did not want to start married life separated from his wife.  He also claims he is nonviolent and did not feel he had the right to take the life of another person, or risk bodily harm to himself once he was married.  

3.  The applicant provides a self-authored statement, a supporting letter from his wife, and a criminal records check in support of his application.  

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 24 November 1975, the applicant enlisted in the Regular Army and completed basic combat training at Fort Ord, CA, in February 1976.  Upon completion of basic combat training, he was assigned to the Defense Language Institute, Presidio Monterrey, CA, to attend language training.  He was relieved from language training for inaptitude in June 1976, and reassigned to Fort Benning, GA, to attend infantry advanced individual training (AIT).  On 5 August 1976, he completed infantry AIT and was awarded military occupational specialty (MOS) 11B (Infantryman) and assigned to Korea.  

3.  His record shows he earned the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  His record documents no acts of valor or significant achievement.

4.  On 7 September 1976, he failed to report for movement to Korea and was placed in an AWOL status.  He remained away 112 days until returning to military control at the Personnel Control Facility, Fort Bragg, NC.  

5.  On 30 December 1976, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 7 September to 28 December 1976.  

6.  On 18 January 1977, the applicant consulted with legal counsel and after being advised of the basis for the contemplated trial by court-marital, the maximum permissible punishment under the UCMJ, the possible effects of a UOTHC discharge, and of the rights and procedures available to him.  He voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

7.  In his request for discharge, he acknowledged that he understood by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged he understood that if his request for discharge was approved he could receive a UOTHC discharge.  He further acknowledged he understood that receipt of an UOTHC discharge could result in him being deprived of many or all Army benefits.  He could be ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws. 

8.  He further acknowledged in his discharge request that he understood as a result of receiving a UOTHC discharge he could expect to encounter substantial prejudice in civilian life.  He submitted a statement indicating he was requesting an administrative discharge under chapter 10 because he no longer wanted to serve in the Army.

9.  On 9 February 1977, the separation authority approved the applicant’s voluntary request for discharge and directed the issuance of a UOTHC discharge and reduction to private (PV)/E-1.  On 2 March 1977, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 11 months and 18 days of creditable active service with 112 days of lost time due to being AWOL.

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

11.  He provides a letter from his wife reinforcing his contention that he did not want to be in the infantry and he was a nonviolent person.  She also confirmed the applicant did not want to go to Korea and be separated from her.  

12.  Army Regulation 635-200 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, 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 (GD) is authorized, a UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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 GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his UOTHC discharge because he was nonviolent and did not want to take the life of another or risk bodily harm to himself, and because he had recently got married and did not want to be separated from his wife has been carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.  

2.  The evidence of record fails to show he applied for or was granted conscientious objector status, or that he ever attempted to resolve his issues through his chain of command prior to going AWOL.  In addition, in the statement he provided with his discharge request. he stated simply he wanted a chapter 10 discharge because he no longer wanted to serve in the Army.  As a result, there is an insufficient evidentiary basis to support granting his relief based on the issues he presents.  

3.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  His UOTHC discharge was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and do not support the issuance of an HD or GD.

5.  Although his post service conduct as he presents it, as supported by the criminal records check, is noteworthy, his discharge accurately reflects his overall record of service.  His post-service conduct alone is not sufficiently mitigating to support granting the requested relief.

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)                                         AR20110004985



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ABCMR Record of Proceedings (cont)                                         AR20110004985



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