IN THE CASE OF:	  

		BOARD DATE:  3 January 2013

		DOCKET NUMBER:  AR20120011139 


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, in effect, an upgrade of his discharge under other than honorable conditions (UOTHC).

2.  The applicant states he was hoping the Army would understand the reason for his misconduct.  He claims he was a good Soldier, but he felt he had to go home to care for his brothers and sisters when his mother went to jail.

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 (RA) on 2 February 1978.  He was trained in and awarded military occupational specialty 76D (Materiel Supply Specialist).  He was advanced to private/E-2 on 2 August 1978 and this was the highest rank he attained while serving on active duty.  His record shows he earned the Marksman Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor or significant achievement.

3.  On 30 December 1978, the applicant was absent without leave (AWOL) from his unit in Germany.  He was dropped from the rolls (DFR) of the organization on 29 January 1979, and remained away for 46 days until being apprehended by civil authorities and returned to military control on 14 February 1979.

4.  On 16 March 1979, the applicant was again AWOL from his unit at the Personnel Control Facility (PCF), Fort Sill, Oklahoma.  He was DFR on 20 March 1979 and remained away for 205 days until returning to military control on 7 October 1970.

5.  On 18 October 1979, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 10 December 1978 to on or about 14 February 1979 and from on or about 16 March 1979 to on or about 7 October 1979.

6.  On 19 October 1979, the applicant consulted with legal counsel.  After being advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the rights and procedures available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive a discharge UOTHC.  He further stated he understood that receipt of a discharge UOTHC could result in being deprived of many or all Army benefits, possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

8.  The applicant completed an AWOL interview statement on 22 February 1979 in which he stated the reason he went AWOL was because he had family 


problems that really needed to be solved.  He stated his mother went to jail and he needed to be home to care for his minor brothers and sisters.  In his AWOL interview statement, he stated he saw the chaplain in Germany and "they" told him to get some letters describing his family problems.  He admitted that he did not discuss the extent of his problems with his officers or noncommissioned officers.

9.  On 14 November 1979, the separation authority approved the applicant's request for discharge and directed his discharge UOTHC and reduction to the lowest enlisted grade.  On 21 November 1979, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 1 month, and 11 days of creditable active military service and he accrued 251 days of lost time due to AWOL.

10.  There is no indication in the record that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 (Personnel Separations) 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 UOTHC is normally considered appropriate.

	b.  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.

	c.  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 to upgrade his discharge has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  Although the applicant's family problems were unfortunate, there is no indication that he tried to resolve or seek help for his problems through his chain of command or other available agencies prior to being AWOL.  The discharge UOTHC he received was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.

4.  In view of the foregoing, there is an insufficient evidentiary basis to support granting the 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)                                         AR20120011139



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ABCMR Record of Proceedings (cont)                                         AR20120011139



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