IN THE CASE OF:	   

		BOARD DATE:	  7 November 2013

		DOCKET NUMBER:  AR20130005549 


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 his discharge was due to his being absent without leave (AWOL).  He had gone home on emergency leave to be with his ill father and did not return until 2 months later.  Prior to this AWOL, he had rendered honorable service for a year and a half and had attained the rank of corporal.  He has lived
with his discharge for over 30 years and is ashamed of his conduct that led to that discharge.  He had a productive life prior to the incident in the service.  He has also been very productive since his leaving the service.  He asks that his honorable service prior to going AWOL be recognized and allow him to live his remaining years without this stigma.  He is not claiming that there was an error.  He admits to having committed the offense of being AWOL.

3.  The applicant provides copies of

* DD Form 214 (Report of Separation from Active Duty)
* Certificate of Recognition

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 26 February 1976, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 63C (Track Vehicle Mechanic).

3.  On 29 July 1976, the applicant was assigned for duty in the Federal Republic of Germany.  On 30 August 1976, he was further assigned to the 11th Armored Cavalry Regiment as a track vehicle mechanic.

4.  On 1 June 1977, the applicant was advanced to specialist four, pay 
grade E-4.

5.  On or about 9 September 1977, the applicant was AWOL.  He was AWOL for about 58 days, until 5 November 1977.

6.  On 1 December 1977, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, during the period that commenced on or about 9 September 1977.

7.  On 15 December 1977, 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.

8.  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.

9.  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.

10.  On 13 March 1978, 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 13 April 1978, the applicant was discharged accordingly.  He had completed a total of 1 year, 
11 months, and 21 days of creditable active duty military service.

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

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

	a.  Chapter 10 of that regulation provides that a member who has committed an offense 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.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

14.  The Certificate of Recognition provided by the applicant indicates he provided 30 years of loyal and dedicated service to the General Motors Corporation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge UOTHC should be upgraded to general, under honorable conditions because he wants the early portion of his service recognized as being honorable.  Furthermore, he is not claiming that there was an error.  He admits to having committed the offense of being AWOL.

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 evidence of record shows that the applicant had satisfactorily completed his initial training.  He was awarded an MOS and assigned for duty overseas.  He was advanced to the rank of specialist four and had completed approximately 
1 1/2 years of honorable service prior to his period of being AWOL.

4.  However, the applicant's early period of satisfactory service does not sufficiently mitigate his subsequent period of AWOL.  Furthermore, the applicant has not provided any explanation or convincing argument to mitigate his not returning to his unit for a period of 58 days.

5.  The applicant’s implied claim of good post-service conduct is noted.  However, this excellent record of service to the General Motors Corporation does not erase his failure to serve his obligated period of military service.

6.  The applicant's lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

7.  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)                                         AR20130005549





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ABCMR Record of Proceedings (cont)                                         AR20130005549



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