IN THE CASE OF:	  

		BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130018610 


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, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states:

   a.  He received medical attention for a right knee injury he sustained during basic combat training on a firing range.
   
   b.  On 20 June 1980, his wife gave birth to their son and due to complications, she passed away.
   
   c.  As a result of his wife's death, he departed absent without leave (AWOL) and was subsequently picked up by the Arkansas State Police.
   
   d.  He was sent to Fort Sill, Oklahoma, where he received a Chapter 10 discharge.
   
   e.  His UOTHC discharge prohibits him from receiving the medical treatment he needs for his right knee injury with shrapnel.
   
3.  The applicant provides:

* Self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 149 (Application for Correction of Military Record) dated 27 June 2011 (previously submitted and administratively closed)
* Department of Corrections Health Status Report
* Standard Form 93 (Report of Medical History)

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 on 16 April 1979.  He was trained in and awarded military occupational specialty 94B (Food Service Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record) shows in Item 18 (Appointments and Reductions) that he was promoted to private first class (PFC)/E-3 on 4 February 1980, and this was the highest rank he attained while serving on active duty.  Item 21 (Time Lost Section 972, Title 10 United States Code) shows he was twice reported AWOL, from 2-4 May 1980 and from 10 July through 2 October 1980, totaling 88 days.

4.  On 21 October 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for being AWOL from on or about 10 July – 3 October 1980.

5.  On 21 October 1980, the applicant acknowledged the charge preferred against him for violating Article 86 of the Uniform Code of Military Justice (UCMJ).  Having consulted with legal counsel and having been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

6.  In his request for discharge he acknowledged he understood that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated that he understood he could face substantial prejudice in civilian life because of a UOTHC discharge.  He further elected not to submit a statement in his own behalf.

7.  On 13 November 1980, after having considered the applicant's request, the separation authority approved his request and directed that he receive a UOTHC discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

8.  On 21 November 1980, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 1 year, 4 months, and 7 days of total active service, of which 88 days were time lost.

9.  There are no medical records on file or provided by the applicant that indicate he suffered from a disabling medical condition that would have supported his separation processing through medical channels at the time of his discharge.  

10.  On 14 June 1985, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

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

	a.  Chapter 10 provides, in 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.  Although an HD or general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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.  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 HD.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded because he only went AWOL after his wife died following complications in childbirth.  While very unfortunate, there is no evidence to show he reported this event to his chain of command to allow them to assist him through official methods, already in place, to assist him in dealing with his loss.  As such, he could have been granted an extension of leave to deal with his family’s personal loss.  To the contrary, he took it upon himself to commit the AWOL offense.  Accordingly, his claim is insufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL 88 days.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His service did not support a GD or an HD at the time of his discharge, nor would it be appropriate to upgrade his discharge now.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130018610



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ABCMR Record of Proceedings (cont)                                         AR20130018610



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