IN THE CASE OF:	

		BOARD DATE:	    14 February 2012

		DOCKET NUMBER:  AR20110015526 


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 upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states that at the time he entered the Army he had just turned 17 years of age, gotten married, and had a child on the way.  He was sent to Fort Leonard Wood, MO, for basic and advanced individual training.  That is when all of his problems started.  In December 1979, he was sexually molested while in the barracks.  He did not intentionally go absent without leave (AWOL), but was running from the embarrassment.  All he wanted was help.  He believes if someone would have listened when he complained, his military career would have been a success.  He has had mental problems "nightmares" ever since.  He has been denied job, credit, etc. because of the type of discharge he received.  He is not and never has been gay.

3.  He provides a copy of the 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's military record shows he enlisted in the Regular Army (RA) on 12 October 1979 for 3 years.  On the date of his enlistment in the RA, he was 17 years and 2 months of age.  He completed training and he was awarded military occupational specialty 12C (Bridge Crewman).

3.  On 25 March 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing 16.72 grams, more or less of marijuana.

4.  He was reported AWOL on 16 April 1980 and returned to military control on 26 April 1980.  

5.  On 9 July 1980, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company E, 1st Engineer Battalion, Fort Riley, KS.  He was charged with one specification each of:

* being AWOL from 16 to 26 April 1980, 6 to 29 May 1980, 30 May to 22 June 1980, and 23 to 24 June 1980 
* unlawfully striking his superior noncommissioned officer (NCO) on 30 June 1980
* wrongfully communicating a threat to an NCO on 30 June 1980 to kill a superior commissioned officer
* wrongfully communicating a threat to an NCO on 30 June 1980 to kill a NCO
* wrongfully communicating a threat to a superior commissioned officer on 30 June 1980 to kill a superior commissioned officer
* offering violence against his superior commissioned officer on 1 July 1980
* behaving himself with disrespect toward his superior commissioned officer on 1 July 1980
* assaulting an NCO on 1 July 1980
* assaulting a second NCO on 1 July 1980

6.  He was again reported AWOL on 4 August 1980 and dropped from the rolls on 3 September 1980.  He was apprehended by civilian authorities and returned to military control on 4 February 1981.

7.  A DA Form 2496-1 (Disposition Form) shows he was interviewed after returning from 184 days of AWOL.  The form shows he acknowledged talking to his officers and NCOs prior to going to AWOL.  He stated, "That he was told by them to go to this place which made him confused so he tried to drink them away which led to harder matters that he could not handle."  He also stated, "That he did not think they could have done anything because it was a very strong emotional problem."  He also expressed his desire to be discharged from the Army.

8.  On 15 February 1981, a DD Form 458 was prepared by the Commander, U.S. Army Personnel Control Facility, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK.  He was charged with one specification each of being AWOL from 4 August 1980 to 4 February 1981 and from 15 February 1981 and remaining so absent.

9.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a DD Form 214 which shows he was discharged in pay grade E-1 on 2 July 1981 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, administrative discharge conduct triable by court-martial.  His service was characterized as UOTHC.  He was credited with completing 11 months and 7 days of total active service and time lost from 4 August 1980 to 3 February 1981 and from 15 February 1981 to 8 June 1981.

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

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation stated that a member who had 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.  The request could be submitted at any time after charges had been preferred and must had included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  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 inappropriate.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his youth made him do the wrong thing and impacted his ability to serve successfully is without merit.  He was 17 years and 2 months of age when he enlisted in the RA.  He was 18 years of age when he went AWOL and 20 years of age when he was returned to military control.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

2.  The evidence of record shows during his period of service he accepted NJP for possession of marijuana, was dropped from the rolls for prior AWOLs already received, and charges were preferred against him for several periods of AWOL and threatening and assaulting his superior NCO and commissioned officers.  He was apprehended by civilian authorities and returned to military control and subsequently went AWOL again.

3.  A DA Form 2496-1 shows he acknowledged talking to his superiors about his problems.  He did not give a reason for going AWOL and admitted that his problems were emotional.  He stated that he wanted to be discharged from the Army.

4.  His record is void of the facts and circumstances which led to his voluntary discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 2 July 1981 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial.

5.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during this period of service.



6.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable or a general discharge.

7.  In view of the foregoing, there is no basis for granting him 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)                                         AR20110015526





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ABCMR Record of Proceedings (cont)                                         AR20110015526



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