BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120022804 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states:

   a.  He was excessively absent without leave (AWOL) because he was trying to protect his mother who was in an abusive marriage since the 1970s.  This ex-husband tried to kill her.  He feels his discharge was unjust based on this fact.  He is from a family with a long line of serving in the U.S. Army and the rank of general.  He was a role model/Soldier, not a harsh criminal.  He has been talking with other Soldiers who had harsher crimes than his and they received honorable discharges.   

	b.  He understands clearly how serious it is being AWOL, that's why he told his mother that he would turn himself in to the U.S. Army Criminal Investigation Command (CID).  CID came and picked him up and transported him to Fort Knox, KY, to see if his company would accept him back.  They didn't and he was glad because he no longer wanted to be a part of that company.  They were crooked.  In the 1980s, "60 Minutes" aired an episode about the Federal Bureau of Investigation investigating Fort Campbell, KY.  

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 17 November 1981.  He completed training and was awarded military occupational specialty 11B (Infantryman).  He was advanced to pay grade E-2 on 1 July 1982.

3.  On 27 July 1982, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being AWOL from 7 to 11 July 1982.  

4.  He was again reported AWOL on 12 October 1982 and was dropped from the rolls of his organization on 10 November 1982.  He was apprehended by civilian authorities and returned to military control on 18 March 1983.

5.  On 25 March 1983, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  The applicant was charged with one specification of being AWOL from 12 October 1982 through 18 March 1983.

6.  On 1 April 1983, after consulting with counsel, he voluntarily requested to be discharged for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10.  He stated he was making this request because of the charges being preferred against him. He acknowledged that he could be discharged UOTHC.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 4 April 1983, the applicant's company commander recommended approval of the applicant's request.  

8.  On 14 April 1983, the separation authority approved the applicant’s request and directed his reduction to pay grade E-1 and the issuance of a UOTHC discharge.
9.  He was discharged in pay grade E-1 on 2 May 1983, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as UOTHC.  He was credited with completing 1 year and 7 days of net active service with 160 days of time lost.

10.  There is no indication he applied to 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate.

	b.  Paragraph 3-7 an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	c.  Paragraph 3-7b a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with being AWOL from 12 October 1982 through 18 March 1983.  Upon receipt of the court-martial charges, he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the offense.  He also acknowledged that he could be discharged UOTHC and that he could be ineligible for many or all benefits administered by the VA.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  

2.  His contentions have been carefully considered; however, he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of court-martial.  

3.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or a fully honorable discharge.

4.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20120022804





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ABCMR Record of Proceedings (cont)                                         AR20120022804



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