BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120017313 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.  

2.  The applicant states he was given a UOTHC discharge due to being absent without leave (AWOL) on two occasions.  He contends that the first AWOL offense occurred after he saw a Soldier getting shot during a bar fight and the second AWOL offense occurred after his father cut his hand in a logging accident and he could not work.  He states that upon his return to Fort Lewis, WA, he was sent to Fort Drum, NY for training.  He was relieved of his weapon and told he would drive for the sergeant of the guard.  He was also told that two AWOL offenses were too many and that he was going to be made an example for others.  He further contends that he was not provided counseling, an attorney, or retraining.  

3.  The applicant states that he was not counseled or given the opportunity to explain his actions.  He was scared to death and in fear of his life.  A cab driver was stabbed to death in the barracks parking lot and he is from a little town so he had never seen anything like that.  He adds that while he was in the field, a mortar round landed about 100 feet away from him.  Had it gone off, it would have killed all of them because the shooting white phosphorus would have melted all of them.  He concludes by stating that he is suffering from hearing loss due to his training as an infantryman and he requires treatment for the hearing loss but the Department of Veterans Affairs (VA) refused to provide him treatment.  

4.  The applicant provides:

* correspondence from the VA
* excerpt from Army Regulation 635-200 (Personnel Separations)
* third-party statement 

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 6 November 1979 and he was awarded military occupational specialty 11C (Indirect Fire Infantryman) upon completion of initial entry training.

3.  Two DA Forms 4187 (Personnel Action) indicate he departed AWOL from:

* 4 November to 24 November 1980
* 9 December 1980 to 7 January 1981

4.  On 16 March 1981, in accordance with his pleas, he was found guilty by a special court-martial of the above AWOL offenses.  He was sentenced to confinement at hard labor for 105 days, a forfeiture of pay, and a reduction to private/E-1.  

5.  Section VII (Current and Previous Assignments) of his DA Form 2-1 (Personnel Qualification Record) shows he was placed in confinement on 
16 March 1981 and that he was reassigned to the 1st Battalion, U.S. Army Retraining Brigade, Fort Riley, KS, upon release from confinement on 1 May 1981.  

6.  On 1 May 1981, he submitted a statement in which he indicated that he did not wish to remain in the Army because he was tired of people telling him what to do.  He indicated that if he was forced to go through "this training" it would be a waste of time for everyone and a waste of the Army's money.  He also indicated that he would go to his next unit and go AWOL again.  He concluded by stating that he hated the fact that he had turned himself in; the next time he would not.

7.  On 12 May 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty at the time prescribed.

8.  His military record includes several training progress notes that show he was counseled on numerous occasions for infractions that include shirking, failing to report, disobeying lawful orders, a negative attitude, and refusal to train.  

9.  On 14 May 1981, his unit commander recommended the applicant's discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14 for misconduct due to frequent incidents of a discreditable nature.  The commander cited as the reasons for the proposed separation action the applicant's court-martial conviction and nonjudicial punishment.  The commander also pointed out the applicant was sent to brigade [retraining] for the purpose of receiving correctional training and treatment, but his actions since his arrival precluded the accomplishment of the objective.  He had received considerable counseling from social workers, leadership team, and unit cadre but he did not respond favorably to the counseling.  

10.  On 14 May 1981, his unit commander advised him that he was initiating discharge proceedings against him due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  The commander discussed the applicant's right to counsel, his right to an administrative hearing by a board of officers, his right to submit statements in his own behalf, and his right to be represented by counsel at a hearing.  

11.  On 15 May 1981, he consulted with legal counsel and acknowledged receipt of the proposed separation action.  He acknowledged he had been advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  He elected to waive his rights and acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged he understood that as a result of the issuance of a UOTHC discharge he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.
12.  On 21 May 1981, the appropriate separation authority approved the applicant's discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

13.  On 22 May 1981, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 
1 year, 3 months, and 12 days of creditable active service and that he accrued 98 days of time lost.  

14.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 12 December 1995.

15.  He provides a third-party statement in which the author indicates the applicant needs to get to the VA as soon as possible for his hearing loss.  He also provided correspondence from the VA that indicates he was denied veterans' medical benefits based on the character of his service.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  

17.  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's request for an upgrade of his UOTHC discharge to a general discharge has been carefully considered.  

2.  The evidence of record confirms his separation processing was accomplished in compliance with applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  He contends that he was not provided counseling, an attorney, or retraining.  However, these contentions are not supported by the available evidence which shows he received considerable counseling from Army leadership, he consulted with counsel, he was afforded representation by counsel (which he waived), and he was reassigned to the retraining brigade in order to receive correctional training and treatment.  The available evidence also shows that upon his reassignment to the retraining brigade, he submitted a statement in which he kept insisting on being eliminated from the Army and indicated that he would go AWOL again if he was not discharged.  

4.  He stated that he requires treatment through the VA for his hearing loss due to his training as an infantryman; however, the ABCMR does not upgrade discharges for the sole purpose of enabling an individual to obtain medical services. 

5.  His record of indiscipline includes two AWOL offenses, nonjudicial punishment, several counseling statements, confinement, and approximately 
98 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel. His record of misconduct also rendered his service unsatisfactory.  Therefore, 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.

6.  Based on the foregoing, there is no basis to grant 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 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)                                         AR20120017313



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ABCMR Record of Proceedings (cont)                                         AR20120017313



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