IN THE CASE OF:	  

		BOARD DATE:	  17 January 2013

		DOCKET NUMBER:  AR20120012321 


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 (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states that following his brother's funeral, he was distraught and drinking heavily.  He was told that the delay in processing his conscientious objector paperwork was a violation of his contract and that technically he was not obligated to stay following his hearing.  He told everyone that he was leaving on 15 December 1978 and was wished well by members of his unit.  Furthermore, he should never have been allowed to enlist because he was deaf in the right ear.

3.  The applicant provides a copy of his unit commander's recommendation for separation.

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's service medical record is believed to be on indefinite loan to the Department of Veterans Affairs and is not available for Board review.

3.  The applicant enlisted in the Regular Army on 3 June 1977, completed training, and was awarded the military occupational specialty 63C (Tracked Vehicle Mechanic).  

4.  The applicant discussed his concerns about being a conscientious objector with his first sergeant and the chaplain in February, March, and April 1978.  

5.  The applicant was evaluated by a mental health clinic.  No abnormalities were found.  The examining physician determined the applicant was sincere in his convictions and recommended that he be separated as a conscientious objector.

6.  On 28 April 1978, the applicant formally requested separation as a conscientious objector.  

7.  On 13 July 1978, his commanding officer recommended approval of his separation as a conscientious objector and recommended the applicant receive a GD.

8.  In early November 1978, following inquiries by both the Brigade Commander and the Inspector General's Office, the applicant was scheduled for a board of officers review to determine if he should be reclassified as a conscientious objector and separated.

9.  On 21 November 1978, his unit commander submitted a statement stating he had known the applicant for eight months.  Despite delays in the processing of his request, the applicant had continued to perform his duties in a better than average manner and the commander stated the applicant could have been processed for separation earlier under several other provisions but he had continued to perform his job in an above average manner.  He again recommended the applicant be separated with a GD.

10.  The conscientious objector classification hearing was held on 22 November 1978.  The board recommended that the applicant be reclassified as a conscientious objector and separated.  The recommendation was forwarded to the division level for review on 6 December 1978.  The final recommendation was approved on 3 January 1979.
11.  The applicant went AWOL on 18 December 1978 and remained absent until 26 July 1979 (220 days).  There is evidence that the applicant was in communication with his Congressman requesting information on the resolution of his reclassification.  The Congressman urged the applicant to return to the military to resolve the issue.

12.  On 14 August 1979, 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 (Enlisted Administrative Separations), 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 and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He acknowledged he understood 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.  

13.  The general court-martial convening authority approved the separation request and directed the applicant be reduced to the lowest enlisted grade with the issuance of a UOTHC discharge.

14.  The applicant was discharged on 3 October 1979 with a UOTHC discharge.  He had 1 year, 8 months, and 23 days of creditable service with 220 days of lost time. 

15.  On 4 May 1982 and again on 22 April 1983, the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

16.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  It provides the following:  

	a.  An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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.

	b.  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.

	c.  A discharge UOTHC is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or discharge in lieu of trial by court martial. 

	d.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge UOTHC is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence that the applicant is now or was deaf in one ear or that such an impairment had anything to do with his misconduct.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The record does not contain any evidence and the applicant has not provided any evidence that anyone told him his enlistment contract had been violated or that he was not obligated to remain at his unit until his classification review was complete.  

4.  The fact that he was in contact with a Member of Congress during his period of AWOL clearly shows he was aware that he was still a part of the military and obligated to perform his assigned duties.

5.  While there were clearly a number of delays in the processing of his conscientious objector classification processing, those delays do not excuse the applicant's extended period of AWOL that resulted in his UOTHC 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)                                         AR20120012321



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ABCMR Record of Proceedings (cont)                                         AR20120012321



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