IN THE CASE OF:  

		BOARD DATE: 3 December 2013

		DOCKET NUMBER:  AR20130006620 


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

2.  The applicant states his discharge was not commensurate with the charges.  He requests an upgrade of his discharge for Department of Veterans Affairs (VA) medical benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 initially enlisted in the Regular Army on 17 January 1972 and he reenlisted on 30 July 1974.  He held military occupational specialty 13F (Fire Support Specialist).

3.  He was issued a DD Form 214 showing honorable service for the period 
17 January 1972 to 29 July 1974.

4.  He served in Korea and Germany.  

5.  On 27 November 1978, charges were preferred against the applicant (then a staff sergeant (SSG)/E-6) for being absent without leave (AWOL) from 
9 September to 17 November 1978 (69 days), and for through design missing the movement of his unit on 9 September 1978.

6.  He consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a UOTHC discharge which would deprive him of many or all Army benefits and he might be ineligible for veterans' benefits administered by the VA.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a discharge UOTHC.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He indicated he submitted a statement on his own behalf.  The statement is not available.

7.  The separation authority approved the request on 6 December 1978 and directed reduction to pay grade E-1 and the issuance of a UOTHC discharge.

8.  On 15 December 1978, the applicant was so discharged.  He had completed a total of 6 years, 8 months, and 22 days of active service with 69 days of time lost.  His DD Form 214 shows the character of his service as UOTHC.

9.  On 16 August 1984, the Army Discharge Review Board denied his request for a change in the character and/or reason of his discharge.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides 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 3-7b 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.

11.  The Table of Maximum Punishments in the Manual for Courts-Martial shows that a punitive discharge plus imprisonment and total forfeitures is authorized for both of the offenses of being AWOL for more than 30 days and missing movement. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was not commensurate with the charges and should be upgraded was carefully considered and determined to be without merit.

2.  The applicant was an SSG when he was charged with being AWOL and through design missing movement with his unit.  His conduct was well below that expected of a noncommissioned officer.  The maximum punishment for either of his offenses included a punitive discharge and other serious sanctions.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with legal counsel, indicates he wished to avoid trial by court-martial and the punitive discharge he might have received.  His service was characterized by the nature of his offenses and the circumstances of his separation and does not warrant an upgrade to honorable or general.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATIONX

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined 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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20130006620



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