IN THE CASE OF: 

		BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120004964


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

2.  The applicant states:

	a.  he was a young and new Soldier who tried to honor his orders to Germany;

	b.  he was needed at home to assist his wife with their two small children and his father-in-law who had a massive heart attack; and

	c.  after his request for a hardship discharge was denied, things at home got worse and he had to return stateside to take care of his family.

3.  The applicant provides no additional evidence.

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 was born on 27 December 1962.  He enlisted in the Regular Army on 3 February 1982.  He was trained in military occupational specialty 11B (Infantryman).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to the rank of specialist four/E-4 on 1 March 1983.  It also shows he was assigned for duty in Germany on 23 July 1983.

4.  On 13 February 1990, a DA Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 23 August 1983 through 5 February 1990.

5.  On 16 February 1990, 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 UOTHC, and the procedures and rights available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a discharge UOTHC.  He elected not to submit a statement in his own behalf with his request.

7.  On 28 March 1990, the separation authority approved the applicant's request for discharge and directed his discharge UOTHC under the provisions of Army Regulation 635-200, chapter 10.

8.  On 9 April 1990, the applicant was discharged UOTHC for good of the service in lieu of trial by court martial.  His DD Form 214 shows he completed 1 year, 8 months, and 20 days of active military service with 6 years, 4 months, and 13 days (or 2,327 days) of lost time from 23 September 1983 to 4 February 1990.

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

10.  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 discharge (HD) or a general discharge (GD) is authorized, a discharge UOTHC 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 of 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 contends his discharge UOTHC should be upgraded.

2.  The applicant was 19 years old when he enlisted and over 20 years old when he departed AWOL.  There is no evidence to show he was any less mature than other Soldiers of the same age with similar personal problems who successfully served their terms of service.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL for more than 6 years from on or about 23 August 1983 through on or about 4 February 1990.  After consulting with legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.  His service clearly did not support an HD or a GD at the time of his discharge and it does not support an upgrade now.

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)                                         AR20110010992



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ABCMR Record of Proceedings (cont)                                         AR20120004964



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