IN THE CASE OF:	   

		BOARD DATE:	  26 May 2014

		DOCKET NUMBER:  AR20130019392 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states he was emotionally distraught at the sudden disappearance of his wife and child and rather than returning to base, he desperately began searching for his missing family.  He also states he was mentally disabled at the time of his family’s disappearance and therefore not responsible for his negligence in failing to report back for duty.
 
3.  He further states, in effect, that he was told not to apply for an upgrade of his discharge until 7 years had elapsed.

4.  The applicant provides a self-authored letter.

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 19 June 1981.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  A DD Form 458 (Charge Sheet) dated 10 October 1985 shows charges were preferred against the applicant for being absent without leave (AWOL) during the period 6 July 1984 through 6 October 1985, a period of 457 days or 1 year and
3 months.

4.  On 11 October 1985, the applicant consulted with legal counsel and after being advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment under the Uniform Code of Military Justice (UCMJ), of the possible effects of a UOTHC discharge, and of the rights and procedures available to him.  He voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant provided a statement and indicated his family had left and his mother was sick in the hospital.

5.  On 1 November 1985, the separation authority approved the applicant's voluntary request for discharge, reduced him to the rank/grade of private/E-1, and directed the issuance of a UOTHC discharge.  On 20 November 1985, the applicant was discharged accordingly.  Records show the applicant was credited with 3 years, 2 months, and 2 days of net active service and with lost time from    6 July 1984 through 6 October 1985.

6.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 at any time after the charges have been preferred.  A UOTHC discharge is normally considered appropriate.

   a.  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.
   
   b.  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's contention that his discharge should be upgraded was carefully considered; however, there is an insufficient evidentiary basis to support his request.

2.  The applicant states he was emotionally distraught at the sudden disappearance of his wife and child.  He also states he was mentally disabled at the time of his family’s disappearance and therefore not responsible for failing to report back for duty.  There is no evidence in the available record and he did not provide any evidence that shows he sought assistance from his chain of command.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The evidence of record shows he consulted with counsel on 11 October 1985.  There is no evidence to show he was mentally disabled at the time to the point where he did not know right from wrong and was unable to adhere to the right.  

5.  There is also no evidence of record and the applicant did not provide any evidence that shows he was told he had to wait 7 years before he could apply for an upgrade of his discharge.

6.  Based on this record of indiscipline that includes 457 days of AWOL, the applicant's service did not meet the standard of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, there is no basis for granting the applicant an honorable or a general 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)                                         AR20130019392



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ABCMR Record of Proceedings (cont)                                         AR20130019392



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