IN THE CASE OF:	  

		BOARD DATE:  31 October 2013

		DOCKET NUMBER:  AR20130005123 


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

2.  The applicant states he was absent without leave (AWOL) because his wife was having difficulties with her pregnancy.  He returned home to take care of his three sons and returned to military control following the birth of his daughter.  He made a bad decision but he put the love and concern for his family first.  He states that at the time of his release there was a document that stated his unit might want him returned.  He currently lives on the Pine Ridge Indian Reservation.  He is a single parent with his 18 month old daughter.  He works on the Temporary Assistance for Needy Families program at the Oglala Recreation Center.  He has been told by the Department of Veterans Affairs that he must have an upgrade of his discharge in order for them to help him with health and housing issues.  

3.  The applicant provides no supporting documentation.

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 September 1989, completed training, and was awarded the military occupational specialty 11B (Infantryman).

3.  He served in Saudi Arabia from 15 September 1990 through 9 April 1991 during Operation Desert Shield/Desert Storm.

4.  On 23 December 1991, he went AWOL and remained absent until 10 April 1992, 110 days.

5.  On 23 April 1992, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, 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 he was guilty of the charges or lesser included charges and that, if his request for discharge is accepted; he could receive a discharge under other than honorable conditions and given a UOTHC discharge.  He acknowledged 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 an under other than honorable conditions discharge.

6.  On 10 June 1992, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court martial and directed the applicant be given a UOTHC discharge and reduced to the lowest enlisted grade.

7.  On 30 June 1992, the applicant was discharged accordingly.  He completed 2 year, 6 months, and 8 days of creditable active service with 70 days in an excess leave status and 110 days of lost time.

8.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7b states a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

	c.  Chapter 10 provides 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.

DISCUSSION AND CONCLUSIONS:

The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offense for which he requested discharge and is appropriate for the applicant's overall record of military service.

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)                                         AR20130005123





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130005123



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1