IN THE CASE OF:	

		BOARD DATE:	    10 January 2013

		DOCKET NUMBER:  AR20120010831 


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 that his discharge be upgraded to an honorable discharge (HD).

2.  The applicant states he was absent without leave (AWOL) because, despite having 30 days of accrued leave, his command refused to let him take emergency leave when his mother had a heart attack two months prior to his normal ETS (expiration term of service).  Following her recovery he voluntarily returned to his command.  He was told that after 10 years he could apply for an upgrade, it has now been over 30 years.  He lost all of his records in a house fire in 2005.  He states his family prides itself for having had a service member in every major U.S. conflict since the War of 1812.  His is the only black spot on this history.

3.  The applicant provides a supporting statement on a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States).

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 26 August 1977, completed training, and was awarded the military occupational specialty 71L (Administrative Specialist).

3.  He was AWOL from 11 June 1980 through 27 August 1980.  Court-martial charges were preferred against him for his AWOL.

4.  On 2 September 1980, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions (UOTHC) and be furnished a UOTHC Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

5.  The discharge authority approved his discharge request and directed he be reduced to the lowest enlisted grade and receive a UOTHC discharge.

6.  The applicant was discharged UOTHC on 24 October 1980 in pay grade E-1.  He had 2 years, 10 months, and 11 days of creditable service with 78 days of lost time.

7.  On 6 March 1981 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  In that application he set forth the same basic statements and arguments as stated in his current request.

8.  On 11 December 1981, the ADRB determined his discharge had been inequitable and granted him an upgrade to general under honorable conditions and restored his rank to specialist four.  The applicant was notified of this upgrade on 8 January 1982.

9.  The applicant's record contains no evidence of a negative nature except for his period of AWOL.
10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states that an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Paragraph 3-7c states that a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

DISCUSSION AND CONCLUSIONS:

1.  The ADRB upgraded his UOTHC discharge to an under honorable conditions (general) (GD) on 11 December 1981.  Since the applicant states he lost all of his records a copy of the revised DD Form 214 will be forwarded to the applicant.

2.  The issue now becomes is there sufficient evidence and/or argument to warrant a further upgrade to an HD.

3.  There is not now nor has the ever been any provision for an automatic review or upgrade of a service member's character of discharge based solely on a specific period of lapsed time. 

4.  The applicant had honorable service up until approximately two months prior to the completion of his period of obligated active duty.  While it is understandable that he wanted to be with his mother at the time of her serious illness, he also had an obligation to the Army to perform his military duties.   

5.  His period of AWOL constitutes a significant departure from conduct expected of a Soldier.  He was AWOL for longer than a 30-day leave would have allowed.  The ADRB decision took into consideration the same factors as presented in this applicant when it granted the upgrade to a GD in 1981.  

6.  The applicant has not provided and the record does not contain any evidence that his service was so meritorious as to warrant a further upgrade of his characterization of service.
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)                                         AR20120010831



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ABCMR Record of Proceedings (cont)                                         AR20120010831



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