IN THE CASE OF:	  

		BOARD DATE:	  13 March 2012 

		DOCKET NUMBER:  AR20110016616 


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

2.  He states, in effect, he wants his discharge reviewed based on various diplomas he received for correction of his behavior and for passing the General Educational Development (GED) test.  

3.  He provides:

* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Various certificates
* A civilian medical document 

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.  He enlisted in the Regular Army on 29 November 1976.  After completion of training, he served in military occupational specialty 11B (Infantryman).  On 
5 July 1979, he was honorably discharged for the purpose of immediate reenlistment on 6 July 1979.  

3.  His record shows the highest grade of rank he attained while serving on active duty was specialist four/E-4.  His record is void of significant recognitions and/or acts of valor. 

4.  A DA Form 2-1 (Personnel Qualification Record – Part II) shows he went absent without leave (AWOL) during three separate periods for a total of 
280 days:

* 3 October 1979 to 8 January 1980
* 21 January to 19 May 1980
* 23 May to 23 July 1980

5.  The applicant was apprehended by military authorities on 24 July 1980 and was placed in military confinement.  

6.  On 28 July 1980, court-martial charges were preferred against him for being AWOL during the three periods listed on his DA Form 2-1.

7.   He received a mental health status examination.  The examiner noted the applicant had been psychiatrically cleared for any administrative action deemed appropriate by his chain of command.

8.  On 29 July 1980, he voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He acknowledged he understood the offense he was charged with and that he was:

* making the request of his own free will
* guilty of the offenses with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished a UOTHC Discharge Certificate



9.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of a UOTHC discharge and he would be deprived of many or all Army benefits, and may be ineligible for many or all Veterans Administration (VA) benefits.

10.  On 3 September 1980, the appropriate authority approved his request for discharge for the good of the service.  He directed the applicant be reduced the grade of private/E-1 and be furnished a UOTHC Discharge Certificate.

11.  Accordingly, on 22 September 1980, he was discharged UOTHC, under the provisions of chapter 10 of Army Regulation 635-200 for conduct triable by court-martial.  He completed 3 years and 6 days of total active service and had 287 days of time lost due to AWOL and military confinement.  

12.  The applicant provided several certificates of completion which show:

* He passed the GED test
* He completed the following courses:

* Anger/Stress Management
* Substance Abuse 
* 12 Keys Study
* Changes Program
* Cognitive Restructuring 

13.  He provided a copy of an outpatient record which shows he was seen on 
4 August 2010 for problems related to heart failure.  The physician’s assessment shows the applicant was doing well and was able to perform activities of daily living.  The plan included the applicant transitioning to the VA for follow-on medical care.  

14.  He applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  After careful review of his records, the ADRB denied the applicant’s request for an upgrade.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with 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 have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a UOTHC Discharge Certificate was normally furnished an individual who was discharged for the good of the service.

	b.  An honorable discharge (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.  A general discharge (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 honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  He was charged with going AWOL on three separate occasions, totaling 
280 days of lost time.  He voluntarily requested discharge and admitted guilt to the offenses for which he was charged.  He also acknowledged that he could receive a UOTHC discharge and that he may be ineligible for many or all Army benefits.  He also acknowledged that he had been advised and understood he may be ineligible for many or all benefits administered by the VA.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  His record contains no evidence of procedural or other errors that would have jeopardized his rights.

4.  His post-service achievements are noted; however, completion of behavior-focused courses does not negate the fact that he was AWOL for 280 days of his military career.  As a result, his service does warrant upgrading a properly issued discharge.

5.  In view of the above, there is an insufficient basis to upgrade his UOTHC discharge to an HD or GD. 



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)                                         AR20110016616





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ABCMR Record of Proceedings (cont)                                         AR20110016616



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