IN THE CASE OF:	  

		BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130007839 


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 to a general discharge (GD).

2.  The applicant states he went absent without leave (AWOL) as a result of trying to relocate to be with his wife as the military could not accomplish that.  He was wrong to go AWOL but he believes that his turning himself in - as opposed to being apprehended by law enforcement officials - should be considered.  His being told that he was being given a GD should also be considered.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 9 September 1971
* DD Form 214 for the period ending 11 October 1979 

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 3 September 1969, the applicant was inducted into the Army of the United States.  On 9 September 1971, he was honorably released from active duty in the rank of specialist four/E-4.  He completed 1 year, 11 months, and 23 days of creditable active service with 14 days time lost.
 
3.  On 8 March 1977, he enlisted in the Regular Army for 4 years.  

4.  A Personnel Control Facility Information Sheet, dated 21 August 1979, shows he was returned to military control by surrendering.

5.  On 28 August 1979, court-martial charges were preferred against him for being AWOL from on or about 27 April to on or about 21 August 1979.

6.  A Personnel Control Facility Interview Sheet, dated 29 August 1979, shows he stated that he went AWOL because he could no longer cope with the Army due to the way he was treated, the life-style, and the environment.  He stated he started drinking heavily and was afraid that if he didn't leave he would "hurt himself or somebody else."  He had spoken with his section chief and the chaplain with little result.  He returned home and got a job.  He blamed the Service for his losing his wife.

7.  On 30 August 1979, he consulted with legal counsel who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment under the Uniform Code of Military Justice (UCMJ), of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.

8.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

	a.  He indicated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that by submitting a request for discharge he was acknowledging he was guilty of the charge(s) against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. 

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished a UOTHC discharge.  He acknowledged he had been advised of and understood the possible effects of a UOTHC discharge and that, as the result of the issuance of such a discharge 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 laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.  He waived his rights.

   f.  He chose not to submit a statement on his own behalf.

9.  His chain of command recommended he be given a UOTHC discharge.  On 17 September 1979, the separation authority approved his request to be discharged for the good of the service.

10.  On 11 October 1979, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in accordance with the separation authority's decision.  The DD Form 214 issued at that time shows his service was characterized as UOTHC.  It also shows he completed 2 years, 3 months, and 10 days of creditable active military service with time lost from 27 April to 20 August 1979 (116 days).

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 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, 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.  A UOTHC Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  Paragraph 3-7b provides that a GD 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 contentions that his having turned himself in to the military and that his being told he was being given a GD should be mitigating circumstances in his case were carefully considered.  However, his surrendering to authorities would have already been considered in his discharge proceedings.  There is no evidence he was told he would be given a GD.  Further, the record of evidence shows he acknowledged he was being considered for a UOTHC discharge.  Therefore, these are not mitigating circumstances warranting a change to the characterization of his service.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing admitted guilt to the charges preferred against him and requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  At the time, a UOTHC discharge was normally considered appropriate for Soldiers separated for the good of the service.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Court-martial charges were preferred against him for being AWOL for 116 days.  His serious misconduct warranted his discharge UOTHC.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  In view of the foregoing, there is no basis for upgrading his discharge to a GD.



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)                                         AR20130007839



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ABCMR Record of Proceedings (cont)                                         AR20130007839



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