IN THE CASE OF:	  

		BOARD DATE:  20 March 2012

		DOCKET NUMBER:  AR20110016539 


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 general under honorable conditions.

2.  The applicant states he requested a hardship reassignment numerous times while he was stationed in Germany so he could help his father who had multiple strokes.  His command suggested he voluntarily accept a discharge UOTHC so he could go home.  His command gave him bad suggestions.  He now wants to use the Department of Veterans Affairs (VA) healthcare and benefits system.  In a 5-page statement he also speaks to his service accomplishments, his father's condition, and the harsh denial of his request for a hardship reassignment/
discharge.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), four letters of support, a list of five references, and a guideline/questionnaire for making a personal statement.

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 15 September 1978, the applicant enlisted in the Regular Army with approximately 3 months of prior Reserve service and prior award of military occupational specialty 11B (Infantryman).

3.  On 26 September 1978, the applicant was assigned for duty at Fort Lewis, Washington, as a scout observer, ammunition bearer, and scout driver with the 2nd Battalion, 2nd Infantry Regiment.

4.  On 2 June 1979, the applicant was advanced to private first class/pay grade E-3.

5.  On 25 January 1980, the applicant departed Fort Lewis for duty in Germany.

6.  On 25 April 1980, the applicant was assigned to Germany for duty as an infantryman with the 162nd Ordnance Company.

7.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record – Part II) indicates he was absent without leave (AWOL) from 19 October 1980 to 22 January 1981.

8.  A DD Form 458 (Charge Sheet), dated 2 February 1981, states the applicant was charged with violation of Article 86 of the Uniform code of Military Justice (UCMJ) for being AWOL from on or about 19 October 1980 to on or about 23 January 1981 (96 days).

9.  On 4 February 1981, 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 discharge under other than honorable conditions, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

10.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, he could receive a discharge UOTHC which would deprive him of many or all of his benefits as a veteran, and he could expect to experience substantial prejudice in civilian life if he received a discharge UOTHC.

11.  In his request for discharge, the applicant indicated 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 if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

12.  On 27 February 1981, the separation authority approved the applicant's request for discharge and directed issuance of a UOTHC Discharge Certificate.  On 26 March 1981, the applicant was discharged accordingly.  He completed a total of 2 years, 6 months and 21 days of creditable active duty service and accrued 96 days of lost time due to AWOL.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

	b.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

15.  The letters of support provided by the applicant essentially state he is actively job searching and accepting spot jobs as they become available and is enthusiastically working toward becoming a positive, productive member of the community.  He is a very friendly person with a very good outlook on life who is eager to get everything in his life together.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge UOTHC should be upgraded to general under honorable conditions because he was given bad suggestions by his command.  He wants to use the VA healthcare and benefits system.

2.  The available records do not contain any evidence showing the applicant applied for and was denied either a reassignment or discharge due to family hardship.

3.  The applicant's implied claim of good post-service conduct as indicated by the letters of support does not sufficiently mitigate his period of AWOL.

4.  The applicant's desire to obtain VA medical benefits is not justification to upgrade 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 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)                                         AR20110016539



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ABCMR Record of Proceedings (cont)                                         AR20110016539



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