IN THE CASE OF:	  

		BOARD DATE:	  5 September 2013

		DOCKET NUMBER:  AR20130002419 


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

2.  The applicant states he enlisted in the U.S. Army Reserve (USAR) to attend school.  Fortunately, after that training, he found a very good job and the USAR was hindering his keeping that job.  He contends that his life has changed so much for the better.  He has worked at one job for 30 years and at another job for 4 years.  He just likes helping others.  He has decided to further his education by going to school to be a human services counselor.

3.  The applicant provides copies of:

* DD Form 214 (Report of Separation from Active Duty)
* Certificate for Clinical Laboratory Technologist, dated 17 July 2007
* Letter from Laboratory Manager, The Mount Vernon Hospital, dated         11 August 2008
* Letter from Laboratory Office Manager, The Mount Vernon Hospital, dated 18 August 2008
* Letter from Director, Pathology and Laboratories, The Mount Vernon Hospital, dated 18 August 2008
* Letter from Director, Human Resources, United Memorial Medical Center, dated 27 October 2008
* Letter from Human Resources Generalist, United Memorial Medical Center, dated 25 January 2013
* Registration Certificate for Clinical Laboratory Technologist, effective through 30 June 2010
* Registration Certificate for Clinical Laboratory Technologist, effective through 30 November 2012
* Registration Certificate for Clinical Laboratory Technologist, effective through 30 November 2015
* Enrollment Form, Monroe Community College, dated 22 January 2013
* Letter of Admission, Monroe Community College, dated 23 January 2013

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.  On 28 July 1976, the applicant enlisted in the USAR for 6 years. His enlistment option was for training in military occupational specialty (MOS) 91N (Cardiac Laboratory Specialist).  He completed his initial training, was awarded MOS 91N, and was released from active duty for training on 20 March 1977.

3.  Orders 93-3, First U.S. Army, Fort George G. Meade, MD, dated 15 May 1978, ordered the applicant to active duty for a period of 17 months and 28 days. His reporting date was 29 June 1978.  He was to be assigned to the medical unit at Fort Dix, NJ.

4.  A Memorandum for Record, subject: Board Proceedings, dated 27 October 1978, states the applicant's appeal was considered by the Reserve Components Personnel and Administration Center Appeals Board on 12 October 1978.  The board determined that the applicant had been properly charged with 9 unexcused absences from 17 September 1977 to 26 February 1978.  As a result the board recommended disapproval of the applicant's request for relief from active duty.  The recommendation was approved on 27 October 1978.

5.  A letter, subject: Appeal of Involuntary Order to Active Duty, Fort George G. Meade, MD, dated 13 November 1978, informed the applicant that his appeal had been disapproved.  Because he had been absent without leave (AWOL) since 29 June 1978 and was dropped from the rolls of the Army as a deserter on 28 July 1978, he was strongly advised to report immediately to the Reception Center, Fort Dix, NJ.

6.  A mental status evaluation, dated 12 December 1978, shows the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good. There was no significant mental illness.  The applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right.

7.  On 13 December 1978, charges were preferred against the applicant under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 30 June to 11 December 1978.

8.  A Personnel Control Facility Interview Sheet, dated 14 December 1978, shows the interviewer's statement saying the applicant failed to show up for involuntary activation to active duty simply because he did not want to go.  He had a good job and thought he would try to appeal the order.  After several alleged communications with his Reserve unit, he said he was told his appeal had been denied.  He also claimed he received the active duty orders a month and a half after he was supposed to report.  He admits to moving to a new address but claims he notified his Reserve unit.  The applicant wanted to be discharged from the Army as soon as possible.  The interviewer recommended he receive a chapter 10, UOTHC discharge.

9.  On 14 December 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.

10.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

11.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

12.  On 18 January 1979, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 794A (Discharge Certificate Under Other Than Honorable Conditions).  On 18 January 1979, the applicant was discharged accordingly.  He had completed a total of 1 month and 9 days of creditable active military service during the period under review and had accrued 164 days of time lost due to AWOL.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part 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 trail by court-martial.  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 (emphasis added), 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 contends that his discharge UOTHC should be upgraded because his life has changed so much for the better.  He has worked for 34 years and likes helping others.  Now, he wants to further his education by going to school to be a human services counselor.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant stated he enlisted in the USAR for the purpose of obtaining schooling.  The evidence clearly shows that once he completed his training, he no longer wanted to serve or to fulfill his military obligation.

4.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his willful AWOL of 164 days simply because he did not want to serve.

5.  Based on his record of AWOL, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20130002419





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ABCMR Record of Proceedings (cont)                                         AR20130002419



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