IN THE CASE OF:	   

		BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130017162 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, he knows he went absent without leave (AWOL).  He had problems at home and could not go on another overseas tour and be separated from his family.  He contends that he was never in trouble in the Army before this period of AWOL.  He does not believe an "honorably discharged veteran should be condemned for making mistakes."

3.  The applicant provides copies of:

* DD Form 794A (Discharge Under Other Than Honorable Conditions), dated 27 March 1987
* Department of Veterans Affairs Health Care Fact Sheet, dated March 2010

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 1978, the applicant enlisted in the Regular Army (RA) for 
3 years.  He completed his initial training as a materiel supplyman.  On 3 July 1980, the applicant immediately reenlisted in the RA for an additional 3-year period of service.

3.  Records indicate the applicant was AWOL commencing 3 November 1981.

4.  In a letter, dated 27 March 1987, the Commander, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, Indiana, wrote to the applicant.  In summary, he informed the applicant of the following:

	a.  On 31 October 1986, a letter was sent to him advising him that he would be discharged with a UOTHC discharge.  He was informed of his right to submit a statement in his own behalf, to include any extenuating, mitigating, or aggravating circumstances he felt could have a bearing on the type of discharge issued.  No response was received.

	b.  Action was taken to discharge the applicant in absentia effective 
27 March 1987.

	c.  The letter indicated that the following documents were enclosed:

* Discharge orders
* a Discharge Certificate
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)

5.  The discharge packet is missing from his military records.  However, his       DD Form 214 shows that he was administratively discharged on 27 March 1987, under the provisions of Army Regulation 600-200, chapter 14, for the commission of a serious offense.  His service was characterized as UOTHC.  He completed 
1 year and 4 months of creditable active service this period, 2 years and 
6 months of prior active service, approximately 605 days of lost time prior to his expiration term of service (ETS) date and about 1,060 days of lost time after his ETS date.

6.  On 10 June 1998, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.  However, he was issued a new DD Form 214 for the purpose of adding the Army Good Conduct Medal.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include the commission of a serious offense.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  The misconduct is considered a commission of a serious military or civil offense when the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice (UCMJ).

	c.  Paragraph-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.

	d.  Paragraph 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.  

8.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his UOTHC discharge should be upgraded to a general discharge because he has prior honorable service and does not believe he should be condemned for making mistakes.
2.  The available evidence of record indicates the applicant was AWOL over 600 days of his 3 year enlistment.  Furthermore, he never returned to military control and was subsequently discharged in absentia due to desertion after about 1,060 days after his normal ETS date.

3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with the law and regulations applicable at the time.  The character of the discharge is commensurate with the available evidence.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130017162



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ABCMR Record of Proceedings (cont)                                         AR20130017162



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