IN THE CASE OF

		BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20130012259 


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 set aside of a DA Form 2627 (Record of Nonjudicial Punishment (NJP) under Article 15, UCMJ [Uniform Code of Military Justice]) and upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was 17 years of age when he entered military service, he had a 10th grade education, and he wasn't very mature.

   a.  He married on 31 August 1981 while stationed in Korea; he was 21 years old and his wife was 20 years old.  At the time, he was given time off by his section leader to get married.
   
    	(1)  There was an upcoming inspection and the leadership was in chaos.  He received NJP based on two alleged incidents that occurred on 15 September 1981 and an incident on 16 October 1981.

    	(2)  He states that he was authorized to live off-post, he went home to eat on both occasions.  On the first occasion, he admits he fell asleep and was late returning to work from lunch, but not from dinner.  The second occasion involved an incident where his wife did physical harm to herself and he did not return to duty as directed.

    	(3)  He adds that this NJP was invalid and should be removed from his records.

   b.  After completing his overseas service in Korea, he was reassigned to Fort Huachuca, AZ.  His son was not allowed to fly on an aircraft because he was under 3 months old.  As a result, his wife and son remained in Korea.  He took leave in Korea on two separate occasions to get his family to the United States.

   c.  He was considered absent without leave (AWOL) while in Korea from 
20 to 22 January 1983.  However, he was hospitalized in the 121st Evacuation, Army Community Hospital, from 8 to 27 January 1983, due to a lower left leg injury that required surgery.

   d.  His wife twice put their son in St. Vincent's home for Amerasians.  The first time he was able to recover his son; however, on the second occasion he couldn't afford to return to Korea.  Consequently, he decided his marriage was over, but he eventually was able to recover his son.  

   e.  He states that while he was on leave in Korea for the second time, he was attached to a unit in Korea before the period of his leave ended.  His commander at Fort Huachuca, AZ, acknowledged in a sworn statement that he had received a message that the applicant was attached to a unit in Korea.  Nonetheless, he placed the applicant in an AWOL status.  He adds that there were compelling circumstances that prolonged his unauthorized absence.  Specifically, his wife had physically harmed herself by burning and cutting her wrist.  He adds that his (former) wife's medical records will substantiate this information, but he has not been able to obtain copies of her records without her permission.  He adds he was not in an AWOL status for a period of 180 days or more and not a deserter.

   f.  He adds the unit in Korea failed to send the attachment documentation to his parent unit, which was beyond his control.  In addition, there were compelling reasons for his being in Korea that involved the welfare of his family.  

   g.  He asked to be released from active duty due to marital problems and the erroneous period of AWOL.  He states he served honorably in the Army for more than 3 years before he requested discharge due to compelling circumstances.

3.  The applicant provides copies of:

* family documents
* six medical records
* four documents from his separation packet
* NJP
* extract from 38 Code of Federal Regulation (CFR) 3.12


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 (RA) on 28 December 1977 for a period of 3 years.  At the time he was 17 years of age.  He was awarded military occupational specialty 75D (Personnel Records Specialist).

3.  A Certification of Military Service shows the applicant served in the RA from 28 December 1977 to 30 July 1980 and that he was honorably discharged in the rank of specialist four (E-4).

4.  The applicant reenlisted in the RA on 31 July 1980 for a period of 3 years.

5.  A DA Form 2627 shows the Commander, Headquarters Company, Military Personnel Center - Korea, imposed NJP against the applicant for:

* being absent from his place of duty on 15 September 1981 between 
1230 and 1630 hours and again between 1830 and 1930 hours
* being absent from his place of duty on 16 October 1981 between 
1200 and 1700 hours

   a.  The applicant was advised of his rights and afforded the opportunity to consult with counsel.

   b.  The applicant did not demand a trial by court-martial.  He requested a closed hearing and indicated that matters in defense, extenuation, and/or mitigation would be presented in person.

   c.  On 27 October 1981, in a closed hearing and having considered all matters presented, the commander found the applicant guilty of the misconduct.

   d.  His punishment was forfeiture of $100.00 per month for 1 month (suspended for 6 months), reduction to grade E-3 (suspended for 6 months),
14 days of extra duty, and 14 days of restriction.

   e.  He appealed the NJP and submitted the matter for consideration by the next superior authority.  The applicant's appeal was denied on 4 November 1981.

   f.  On 25 November 1981, the commander vacated the suspension of the punishments and ordered the unexecuted portion of the punishments executed.

6.  A DA Form 2627 shows the Commander, Headquarters Company, Troop Command, Fort Huachuca, AZ, imposed NJP against the applicant for being absent from his unit without authority from 2 October 1982 to 11 November 1982.

   a.  The applicant was advised of his rights and afforded the opportunity to consult with counsel.

    b.  The applicant did not demand a trial by court-martial.  He requested a closed hearing and indicated that matters in defense, extenuation, and/or mitigation would be presented in person.

   c.  On 3 December 1982, in a closed hearing and having considered all matters presented, the commander found the applicant guilty of the misconduct.

   d.  His punishment was forfeiture of $250.00 per month for 2 months (suspended until 4 April 1983), reduction to grade E-1 (suspended until 4 April 1983), 45 days of extra duty, and a letter of reprimand.

   e.  The applicant did not appeal the Article 15.

7.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

   a.  item 5 (Oversea Service) he served in Korea from 19 December 1980 through 18 August 1982; and

   b.  item 21 (Time Lost) he was AWOL:
   	
* from 28 May through 3 June 1979
* from 2 October through 10 November 1982
* from 26 March through 28 April 1983

8.  A DA Form 2823 (Sworn Statement) shows the Commander, Headquarters Company, Troop Command, Fort Huachuca, AZ, informed the applicant that beginning 15 March 1983 he could take 11 days leave (i.e., the maximum leave he could accrue prior to expiration term of service); on 26 March 1983, he received a message from an unofficial MARS (Military Auxiliary Radio System) call indicating the applicant had been assigned to a unit in Korea and official documentation would follow; and he advised the caller that the applicant would be carried in an AWOL status until official notification was received by the (parent) unit.

9.  A DA Form 4384-R (Commander's Report of Inquiry/Unauthorized Absence) shows the commander reported that a witness (the First Sergeant, Headquarters Company, Troop Command, Fort Huachuca, AZ) and evidence indicated that the applicant went on leave to Korea and never returned.

10.  Court-martial charges were preferred against the applicant for being AWOL from 26 March 1983 to 28 April 1983.

11.  On 25 May 1983, the applicant consulted with legal counsel and voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

   a.  He acknowledged that he was guilty of the charge against him, or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a punitive discharge.  He added that he did not desire further rehabilitation because he had no desire to perform further military service.

   b.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was given an under other than honorable conditions discharge.

   c.  He was also advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

	d.  The applicant and his counsel placed their signatures on the document.

12.  The separation authority approved the applicant's request for discharge and directed his discharge under other than honorable conditions.

13.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 20 June 1983 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had completed 5 years, 3 months, and 2 days of net active service this period and 2 months and 1 day of total prior inactive service.

14.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

15.  In support of his application the applicant provides the following documents:

   a.  Certificate of Marriage that shows he married Dal Mi C-- on 31 August 1981;

   b.  Report of Birth Abroad that shows the applicant and his wife had a son who was born on 24 May 1982;

   c.  Statement of Release that shows, on 24 February 1988, the applicant's wife authorized adoption of their child by parents in the United States.

   d.  Divorce Decree that shows the applicant and Dal Mi C-- divorced on 
16 December 1992;

   e.  Request for Information Needed to Locate Medical Records, dated 22 July 2013, that shows the applicant requested assistance in obtaining medical records pertaining to his former spouse.

   f.  Six military medical records for the period 8 to 27 January 1983, that show the applicant was admitted to the 121st Evacuation Hospital on 8 January 1983 for a third degree burn on his lower left leg; he was stationed in the U.S. and on leave in Korea; he was AWOL from 20 to 22 January 1983; and he was discharged from the hospital on 27 January 1983.

   g.  extract of 38 CFR 3.12, that applies to the Department of Veterans Affairs (VA), and outlines criteria for the determination of payment of benefits.

16.  Army Regulation 27-10 (Military Justice), chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.  Paragraph 
3-28 (Setting aside and restoration) provides that this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.

   a. 	NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under UCMJ, Article 15.  In addition, the imposing commander or successor-in-command may set aside some or all of the findings in a particular case.  If all findings are set aside, then the UCMJ, Article 15, itself is set aside and removed from the Soldier's records.  The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15, or punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  

   b.  Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

   c.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment, the commander will record the basis for this action on the DA Form 2627-2.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action.

17.  Army Regulation 635-200, in effect at the time, 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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 contends that NJP imposed for incidents that occurred in September and October 1981 should be set aside and his under other than honorable conditions discharge should be upgraded because:

* he was immature
* there were extenuating circumstances that caused him to be absent from his place of duty
* he was erroneously considered AWOL from 20 to 22 January 1983 when he was hospitalized from 8 to 27 January 1983
* there were extenuating circumstances involving the harmful behavior of his wife and loss of his son to adoption that caused him to go AWOL
* he was not in AWOL for a period of 180 days or more and not a deserter

2.  A Certification of Military Service shows the applicant successfully completed an initial period of honorable active duty service from 28 December 1977 to 
30 July 1980.  Thus, his contention that he was immature is not supported by the evidence of record.

3.  The applicant received NJP for being absent from his place of duty on 
15 September 1981 between 1230 and 1630 hours and again between 1830 and 1930 hours, and also on 16 October 1981 between 1200 and 1700 hours.

   a.  The evidence of record shows the NJP was properly administered, the applicant was advised of his rights, he presented matters on his behalf in a closed hearing, and his appeal of the NJP was considered by the next superior authority and denied.

   b.  Other than the applicant's uncorroborated statement to this Board, he provides no substantiating documentation in support of his contention that the NJP was improperly or unjustly imposed.

   c.  Thus, he provides insufficient evidence to support the NJP being set-aside.

4.  During the period of service under review, the applicant's records show he was AWOL from 2 October through 10 November 1982 and from 26 March through 28 April 1983; a total of 75 days.  

   a.  A medical record that he provides shows he was hospitalized from 8 to
27 January 1983 and AWOL from 20 to 22 January 1983 during that period.

   b.  The period of AWOL occurred while the applicant was on leave in Korea and it appears it was not reported to his unit in the U.S. because the period of AWOL is not recorded in his military personnel records or on his DD Form 214.

   c.  However, the applicant provides insufficient evidence to show the AWOL entry in his medical record is invalid.

   d.  Therefore, there is no basis for correcting the medical record.
   
   e.  It is noted that the evidence of record supports the applicant's contention he was not in an AWOL status for a period of more than 180 days.  However, the issue of benefits, as governed by 38 CFR 3.12, is a matter the applicant should address to the VA.

5.  There is no evidence and the applicant provides insufficient evidence to show he was attached to a unit in Korea during a period he was on leave from his unit in the U.S; specifically, during the periods 2 October through 10 November 1982 or 26 March through 28 April 1983, when he was charged with being AWOL.   In addition, there is no evidence that he submitted a request for compassionate reassignment or hardship discharge.  Thus, the evidence of record fails to show the applicant took appropriate administrative actions to attempt to resolve the personal issues that he attributes to his being AWOL.  (It is noted the documents the applicant provides regarding his former spouse's authorization to release their son for adoption were completed on 24 February 1988; nearly 5 years after the applicant was discharged from the Army.)

6.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

7.  During the period of service under review, the applicant received NJP on two occasions, he was reduced to E-1, and he had 75 days (i.e., two and one-half months) of time lost.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.

8.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.

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)                                         AR20130012259



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ABCMR Record of Proceedings (cont)                                         AR20130012259



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