IN THE CASE OF:	  

		BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120021881 


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.

2.  The applicant states that at the time he departed absent without leave (AWOL), he could not get emergency leave for his daughter's emergency operation due to a major field training exercise.  He should have requested help from the Red Cross but he did not know how to do it at the time.  He has been out of the service for over 28 years and he has been a good active person.  He adds that he retired from Federal Express with 15 years of service and he is now trying to obtain veterans' benefits.  

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 5 April 1977 and he was awarded military occupational specialty 16P (Air Defense Artillery Short Range Missile Crewman) upon completion of initial entry training.  He reenlisted for a period of four years on 6 August 1979.  

3.  He departed AWOL on 25 January 1981 and remained AWOL until he surrendered to military authorities on 19 February 1981.

4.  He accepted nonjudicial punishment on 8 November 1983 for failing to go at the time prescribed to his appointed place of duty.  

5.  He was in an AWOL status during the period 16-17 November 1983.

6.  He departed AWOL on 5 December 1983 and returned to military control on 
9 December 1983.

7.  He accepted nonjudicial punishment on 16 December 1983 for being AWOL during the period 5-9 December 1983.

8.  He again departed AWOL on 21 December 1983 and remained AWOL until 30 January 1984.

9.  On 30 January 1984, court-martial charges were preferred against him for the above AWOL offense.  

10.  On 1 February 1984, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

11.  He acknowledged in his request that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also acknowledge he had been advised of the implications that were attached to it and that by submitting the request for discharge, he was admitting guilt of the charge (s) against him or of a lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He also acknowledged that he could be issued a UOTHC discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a UOTHC discharge.

12.  On 17 February 1984, the separation authority approved his request for discharge and directed the issuance of a UOTHC Discharge Certificate.  On 
8 March 1984, he was discharged accordingly.  Item 21 of his DA Form 2-1 (Personnel Qualification Record) indicates he accrued 71 days of lost time.  

13.  There is no evidence in his military records that shows there were medical emergencies pertaining to his family members which may have influenced his decision to depart AWOL on several occasions.  

14.  On 5 June 1985, the Army Discharge Review Board denied his request for an upgrade of his UOTHC discharge.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation provides in:

	a.  Chapter 10 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 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 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 contention that his UOTHC conditions discharge should be upgraded has been carefully considered.  

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress.  

4.  His record of indiscipline includes nonjudicial punishment on two occasions, several AWOL offenses, court-martial charges for being AWOL, and 71 days of lost time.  Based on his record of indiscipline, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  He indicated that he is now attempting to obtain veterans' benefits; however, the ABCMR does not upgraded discharges for the sole purpose of making an individual eligible for veteran's benefits.

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)                                         AR20120021881



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ABCMR Record of Proceedings (cont)                                         AR20120021881



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