BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120007540 


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 upgrade of his under other than honorable conditions discharge (UOTHC) to a general, under honorable conditions discharge.

2.  He states:

* while on active duty he was hospitalized for surgery
* upon being discharged [from the hospital] he learned he was listed as absent without leave (AWOL)
* he feels this was a tragic error and is urging the Board's consideration

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 19 July 1977.

3.  The applicant's record documents no acts of valor or service warranting special recognition.

4.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  2 March 1978, for leaving his post before he was properly relieved; and 

	b.  21 December 1978, for disobeying a lawful order on 6 December 1978. 

5.  His record contains a DD Form 458 (Charge Sheet), dated 6 October 1981, which shows he was charged with one specification of AWOL from 1 April to 1 October 1981.

6.  On 7 October 1981, the applicant was advised by legal counsel of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.  Having been so advised, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

7.  He acknowledged:

	a.  he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  he had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charges against him or of a lesser-included offense that also provided for the imposition of a bad conduct or a dishonorable discharge; 

	c.  he did not desire further rehabilitation or desire to continue in the military; 

	d.  he understood if his request was accepted he could be issued a UOTHC discharge, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including all benefits administered by the Veterans Administration;

	e.  he understood he could expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge;

	f.  he understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

	g.  he was advised he could submit any statements he desired to accompany his request for discharge.  He indicated he would submit a statement; however, it is not available for this record of proceedings.  His record does contain the commander's recommendation for approval of his discharge, which contains an interview between the applicant and the commander, dated 7 October 1981, in which he stated:

* his 183 days of AWOL were caused by family problems
* he had trouble locating a place for his family to live while he was assigned to Fort Stewart, GA and when asked, his company commander offered him no assistance 
* his family was evicted from their home, so he went AWOL 
* on 1 October 1981, he surrendered to military authorities and arrived at Fort Bragg, NC on 6 October 1981
* he and his family lost all confidence in the military and he had no desire whatsoever to remain in the Army

8.  On 7 October 1981, his company commander recommended approval of his request with the issuance of a UOTHC discharge.

9.  On 20 October 1981, his brigade commander recommended approval of his request with the issuance of a UOTHC discharge.

10.  On 5 November 1981, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with the issuance of a UOTHC discharge.  

11.  On 10 December 1981, he was discharged accordingly.  The DD Form 214 he was issued confirms he completed 3 years, 10 months, and 23 days of total active service.  He had 183 days time lost due to AWOL. 

12.  On 28 December 1993, the Army Discharge Review Board disapproved his request for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense(s) charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life due to such a characterization service.  A UOTHC discharge certificate would normally be furnished an individual who was discharged due to conduct triable by court-martial.

14.  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.  There is no evidence that shows the applicant was hospitalized or underwent surgery while he was on active duty.  In fact, the excuse he provided to his commander was absent any reference to his being hospitalized or having surgery.  However, the evidence of record shows he had two NJPs under the UCMJ and had 183 days of lost time due to AWOL.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

2.  Based on his record of indiscipline, 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.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.



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)                                         AR20120007540





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ABCMR Record of Proceedings (cont)                                         AR20120007540



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