IN THE CASE OF:	  

		BOARD DATE:	    31 October 2013

		DOCKET NUMBER:  AR20130005947 


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

2.  The applicant states:

	a.  he did not have enough time to recover from his tour of duty in Germany;

   b.  he had to try to get his head together as it is not easy trying to start over; and
   
   c.  in a four-page primarily unclear statement wherein he stated:
   
* he departed absent without leave (AWOL) to try to figure things out 
* he was triggered to go AWOL because there was going be a GI Party to clean up a mess after he was just medically evacuated from Germany 
* he did not want to be AWOL and should have been sent to the mental ward
* he finished high school, graduating at the age of 19 years which shows he is not a loser
* his real dad was in the Army but never admitted to being his father and told his mother to get an abortion or figure it out
* he was raised by his mom and step-dad who was a ranger in the Army and drove his mom crazy for ten years until she divorced him
* he was offered a medical discharge by the Department of Veterans Affairs hospital in Killeen, Texas in 1984
* he was called a loony-toon in Germany because he said and did a few odd ball things like carrying the Bible, which he believes in

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's military records show he initially served in the Regular Army from 6-24 June 1977, at which time he was honorably discharged in a trainee status.  The DD Form 214 issued to him at that time shows he completed 24 days service.

3.  On 18 August 1982, he enlisted in the Regular Army.  He was trained in and served in military occupational specialty 11B (Infantryman).

4.  On 9 February 1984, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against him for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 5 November 1983 through 6 February 1984.

5.  On 10 February 1984, having consulted with legal counsel and having been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge UOTHC, and of the procedures and rights available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

6.  In his request for discharge, he acknowledged he understood that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of his UOTHC.  He further elected to submit a statement in his own behalf.

7.  In his statement, the applicant indicated:

* he committed the AWOL offense because he did not like the Army anymore and just left
* he wanted to get out of the Army because he did not want to live like a Soldier anymore
* he would not have committed the AWOL offense if he had not joined the Army in the first place

8.  On 23 February 1984, after having considered the applicant's request, the separation authority approved his request and directed he receive a discharge UOTHC under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

9.  On 5 March 1984, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 3 months, and 17 days of active service.

10.  The available record is void of any medical treatment records or documents that indicate he was ever treated for a disabling medical or mental condition during his period of active 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 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	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 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’s contention that his UOTHC discharge should be corrected because he did not have enough time to recover from his tour in Germany was carefully considered.  This claim lacks merit.

2.  The evidence of record confirms he was charged with the commission of an AWOL offense punishable under the UCMJ with a punitive discharge and after consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  His request for discharge under the provisions of chapter 10, Army Regulation 635-200, includes his admission of guilt.

3.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  As a result, there is an insufficient evidentiary basis to support an upgrade of his discharge.

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)                                         AR20130005947



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ABCMR Record of Proceedings (cont)                                         AR20130005947



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