IN THE CASE OF:

		BOARD DATE:	  1 May 2014

		DOCKET NUMBER:  AR20130013815 


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 the discharge of her deceased husband (a former service member (FSM)) be upgraded from under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states the FSM left base to be present for the birth of his son in Mexico.  After his son was born, he voluntarily returned to base and turned himself in.  He was then discharged UOTHC.

3.  The applicant provides:

* DD Form 214
* Certificate of Death
* Marriage Record

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 January 1980, the FSM enlisted in the Regular Army.  The highest rank he held was private first class/pay grade E-3.

3.  A DD Form 458 (Charge Sheet) shows that on 2 November 1989 he was charged with being AWOL from Fort Lee, VA, from 22 May 1981 to 26 October 1989.

4.  A Fort Dix Control Facility Form 691A (Personnel Control Facility Interview Sheet), dated 30 October 1989, shows that in response to the question "Why did you go AWOL?" the FSM stated his family and he went to Mexico on vacation.  On their way back they found that she (taken to mean his spouse) could not come back with him.  He stated he was supposed to go to Italy for the rest of his time and his wife was already pregnant.  He states he came back and he didn't know what to do, so he figured he would go back to Mexico with some money he had saved and could support his family.  But it didn't work that way.   

5.  On 2 November 1989, the FSM consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized 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.  

6.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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 against him or of a lesser included offense 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.

	f.  He waived his rights.  He elected not to provide a statement in his own behalf. 

7.  On 6 December 1989, the separation authority approved his request to be discharged for the good of the service.

8.  On 18 December 1989, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  The DD Form 214 issued at that time shows his service was characterized as UOTHC.  It also shows he completed 1 year and 7 months of creditable active military service with time lost from 22 May 1981 to 25 October 1989.
  
9.  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.

10.  Army Regulation 635-200 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 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.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were noted.  However, the available evidence does not support upgrade of the FSM's UOTHC discharge.

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 was charged with being AWOL (for 8 years after the birth of his child), an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  In view of the foregoing, there is no basis for granting the FSM a general discharge or an honorable 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)                                         AR20130013815



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ABCMR Record of Proceedings (cont)                                         AR20130013815



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