BOARD DATE: 23 August 2012
DOCKET NUMBER: AR20120005962
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 a general discharge (GD).
2. The applicant states, in effect, he was going through a divorce which caused his spouse and his mother-in-law to make up stories about him to his Captain just to garnish his pay check. He further states he served his country with pride and received expert awards in his training.
3. The applicant did not provide any additional documents.
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 applicants 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 applicants 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 1 April 1980. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63N (Tank System Mechanic). The highest rank/grade he attained while serving on active duty was private/E-1.
3. Records show that the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates:
a. 1 July 1980, for being absent without leave (AWOL) during the period 18 June 1980 through 20 June 1980;
b. 4 August 1980, for failing to go to his appointed place of duty and willfully
disobeying a lawful order;
c. 5 September 1980, for being AWOL during the period 13 August 1980
through 26 August 1980; and
d. 7 January 1981, for failing to go to his appointed place of duty and
breaking restriction.
4. On 23 March 1981, the applicants duty status changed from present for duty (PDY) to AWOL.
5. On 22 April 1981, the applicants duty status changed from AWOL to PDY.
6. On 24 April 1981, the applicants duty status changed from PDY to Confined by Military Authority pending a trial date.
7. The facts and circumstances of the applicant's discharge are not available for review with this case. However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 2 June 1981 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a character of service of UOTHC. This form also shows he completed a total of 1 year and 18 days of creditable active service and he accrued 45 days of lost time.
8. Records show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the board's 15-year statute of limitations and was denied relief.
9. Army Regulation 635-200 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.
10. 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 honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that his discharge be upgraded to a GD was carefully considered. However, it was determined that there is insufficient evidence to support this request.
2. During the period of service under review the applicant was punished on several occasions for acts of indiscipline and AWOL.
3. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.
4. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service.
5. Based on his record of indiscipline, which includes 45 days of AWOL, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to a 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) AR20120005962
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