BOARD DATE:	  29 November 2012

		DOCKET NUMBER:  AR20120009680 


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 discharge be upgraded to general, under honorable conditions.

2.  The applicant states he was honorably discharged for the purpose of immediate reenlistment in 1985 and served for over five years.  He contends that in 1988, his mother was diagnosed with breast cancer and it did not seem to be but a few months between the diagnosis and her death.  Due to his mother's imminent death, he did not return to Korea as required because she was all he had back home and he could not leave with her dying.  He continues that while on leave, he took more time than he was supposed to in order to deal with his mother's hospitalization and death.  He realized that he could have dealt with the situation differently, but at age 23 he did not take her illness and subsequent death well.  He adds that after serving for over five years and because of the love he had for the service, he does not believe a minor infraction warranted being discharged with less than a general discharge.

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 enlisted in the Regular Army on 1 November 1982.  On 
9 August 1985, he reenlisted for a period of three years.  

3.  A DA Form 4187 (Personnel Action) shows he was absent without leave (AWOL) on 27 October 1987 and returned to military control on 13 January 1988 (78 days).

4.  A DD Form 458 (Charge Sheet), dated 28 November 1987, shows court-martial charges were preferred against him for the AWOL offense.

5.  His record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which identifies the authority and reason for his separation.

6.  His DD Form 214 confirms he was discharged on 11 March 1988 in the rank/grade of private/E-1, after completing 5 years, 1 month, and 23 days of creditable active duty service.  It also shows he accrued 78 days of lost time and that he was separated 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, with his service characterized as under other than honorable conditions.

7.  There is no evidence in the available records indicating he sought assistance through Army support channels in order to obtain a compassionate reassignment based on his mother's medical condition.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge.  

9.  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 or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  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.  

10.  Under the Uniform Code of Military Justice (UCMJ), the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because of the reason for his AWOL offense has been carefully considered.

2.  His complete separation packet is not available.  However, the record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  It is presumed that after consulting with legal counsel, he admitted guilt to the AWOL offense and voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Additionally, there is no evidence in the available records indicating he sought assistance through Army support channels in order to obtain a compassionate reassignment based on his mother's medical condition.

4.  His service prior to his court-martial charges was noted; however, based on the offense he was accused of and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  Based on the foregoing, there is no basis to grant the applicant's request.


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)                                         AR20120009680



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ABCMR Record of Proceedings (cont)                                         AR20120009680



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