IN THE CASE OF:	  

		BOARD DATE:  6 September 2012

		DOCKET NUMBER:  AR20110024910 


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, in effect, he served his country honorably for almost 2 years, is homeless, and in need of medical services.

3.  The applicant provides a two-page self-authored letter, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and medical records.

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 enlisted in the Regular Army on 23 March 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 19K (Armor Crewman).  

3.  The applicant's records show he was absent without leave (AWOL) during the period 17 July 1989 through 22 September 1989.

4.  On 3 October 1989, charges were preferred against the applicant for being AWOL during the period 17 July 1989 through 22 September 1989.

5.  On 4 October 1989, 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 Uniform Code of Military Justice (UCMJ), the possible effects of a UOTHC discharge, and of the procedures and rights that were 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.

6.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge 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.

7.  On 27 December 1989, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200 and directed the issuance of a discharge UOTHC.  On 6 February 1990, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 8 months, and 9 days of creditable active military service with 68 days of lost time.

8.  The applicant provided a two-page self authored statement which essentially explained he requests an upgrade of his discharge because he was summoned home for a family medical emergency and was having emotional problems at the time in the military.  He tried to get reassigned to the closest military installation; however, he was told that they would contact him and his command with the answer.  While awaiting an answer his leave ran out and he was listed as AWOL. Therefore, he elected to take a UOTHC discharge in lieu of court-martial.  He further states he has continued to have emotional problems and has been seen by seven county services in Louisville, Kentucky.  Additionally, he has attached medical records depicting his on-going battle with alcoholism, drugs, and mental health issues.

9.  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.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  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.

11.  Army Regulation 635-200, 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.

12.  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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded to an HD was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  The applicant's records show he was in an AWOL status during the period 17 July 1989 through 22 September 1989.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate 
the contrary.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on the applicant's period of AWOL, which was 68 days, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to the requested relief.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or medical benefits.

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)                                         AR20110024910



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ABCMR Record of Proceedings (cont)                                         AR20110024910



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