IN THE CASE OF:  

		BOARD DATE:  13 December 2012

		DOCKET NUMBER:  AR20120010106


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* he went on emergency leave because his father was diagnosed with cancer and was preparing for surgery
* the doctors weren't sure if his father would survive the surgery – they stated the cancer could spread and cause his father to die
* his father's surgery was postponed, so he called to have his emergency leave extended 
* his leave extension was verbally granted; however, he later found out he was considered absent without leave (AWOL)
* he turned himself in as soon as he found out he was AWOL – he explained what happened but he was still punished for being AWOL

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 30 March 1981.  He completed training and was awarded military occupational specialty 64C (Motor Transport Operator).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  On 17 January 1983, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful command, on or about 10 December 1982.  

4.  On 3 May 1983, he was reported as AWOL from his unit, the 870th Transportation Company, Fort Eustis, VA.  On 2 June 1983, he was dropped from the rolls of the Army.  He remained AWOL until he surrendered to military authorities on 7 June 1983.

5.  On 21 June 1983, court-martial charges were preferred against him for a single specification of the Charge of being AWOL, from on or about 3 May 1983 to on or about 7 June 1983.

6.  On 22 June 1983, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested 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.  In his request for discharge, he acknowledged he understood that by requesting discharge, he was admitting guilt to the charge 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He indicated he desired to submit a statement in his own behalf; however, his discharge packet contains no such statement.

8.  On 29 June 1983, the commander of the U.S. Army Personnel Control Facility (PCF), XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, personally interviewed the applicant regarding the applicant's request for discharge.  During this interview, the applicant stated his AWOL was due to family issues.  Specifically, he cited his father's unemployment and his mother's status as the sole provider for a family of five.  He stated he remained AWOL to assist his family.  His father's health is not mentioned in the interview synopsis.

9.  On 26 January 1984, the separation authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge.  On 7 February 1984, he was discharged accordingly.  The DD Form 214 he was issued shows he was credited with the completion of 2 years,           9 months, and 4 days of net active service during this period of enlistment, and he had lost time from 3 May 1983 through 6 June 1983.  His DD Form             214 further shows he was discharged under the provisions of Army Regulation    635-200, chapter 10, in lieu of trial by court-martial, and he was issued an under other than honorable conditions discharge.  

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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.

13.  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 contends his period of AWOL service resulted from his need to be by his father's side during his medical condition.  The evidence of record does not support this contention.  During his interview with the Fort Bragg PCF commander he never mentioned his father's illness.  He attributed his AWOL service to his desire to provide financial support to his family. 

2.  His 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.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  Based on his extended period of time lost, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20120010106



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