IN THE CASE OF:	  

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130020275 


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 and the narrative reason for separation be changed to hardship. 

2.  The applicant states his mother was having problems coping mentally and financially following her separation from an abusive husband.  He felt he was needed at home to support his mother, help with bills, and help care for his sisters.  Being young and not knowing much he did not realize that being absent without leave (AWOL) would cause so many problems.  He has not needed or asked for any help for 31 years but needs some now so that he and his wife don't become homeless.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 the Regular Army on 3 January 1978, completed training, and was awarded the military occupational specialty 45N (Tank Turret Mechanic).  He reenlisted without a break in service on 8 July 1980.  No DD Form 214 was issued to record this period of service.

3.  The record contains a Letter of Appreciation and award orders for the Army Good Conduct Medal.

4.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, as follows -

* 15 October 1980, for 1 day of AWOL
* 11 March 1982, for possession of marijuana 

5.  The applicant was AWOL from 15 June 1982 through 25 October 1982, a total of 134 days.  

6.  Upon return to military control court-martial charges were preferred for the above period of AWOL and for his assault on a fellow Soldier.

7.  On 29 October 1982, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for 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).  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished a UOTHC Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.  He declined to submit a statement on his own behalf.

8.  The applicant was placed on excess leave from 29 October 1982 through 1 December 1982.

9.  The discharge authority approved the discharge and directed the applicant be reduced to the lowest enlisted grade and discharged UOTHC.

10.  The applicant was discharged on 1 December 1982 with a UOTHC characterization of service.  He had 4 years, 6 months, 15 days of creditable service with 135 days of lost time and 33 days of excess leave.  His awards are listed as the Army Service Ribbon, Overseas Service Ribbon, Good Conduct Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with Grenade Bar, and Expert Marksmanship Qualification Badge with Pistol Bar.

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

	a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’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 under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

   c.  Paragraph 3-7c provides that a discharge UOTHC is issued when there is/are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.

   d.  Chapter 6 provides that Soldiers on active duty may be discharged or released because of genuine dependency or hardship. 
       
       (1)  Hardship exists when in circumstances not involving death or disability of a member of the Soldier's (or spouse's) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. 
       
       (2)  Undue and genuine hardship does not necessarily exist because of altered income or because the Soldier is separated from his/her family or that they must suffer the inconveniences normally incident to military service.
       
       (3)  Soldiers will not be separated because of hardship until proper disposition is made of the case if they are under charges.

   e.  Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A discharge UOTHC is normally considered appropriate.  
   
12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 and states that prior to 1 October 1979, DD Forms 214 were issued when a Soldier was discharged for immediate reenlistment.  This practice was stopped effective 1 October 1979.  At the time of the applicant's discharge the regulation stated that block 12a (Date Entered AD This Period) was the date of the last reenlistment as opposed to the initial date of entry as currently utilized.  Service prior the date of reenlistment was recorded at block 12d (Total Prior Active Service).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion or duress.

2.  The applicant has not provided and the record contains no evidence that he made his command aware of his family situation, that he requested assistance or help, or that he requested a hardship discharge.  

3.  Further, the applicant would not have been eligible for a hardship discharge consideration until the disposition of his pending court-martial charges.  It was these charges and his request for discharge that resulted in the UOTHC characterization of his discharge and narrative reason for separation.

4.  The mere passage of time is insufficient in and of itself to warrant a change of the applicant's discharge.  

5.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was 23 years of age, had satisfactorily completed training, and had served for over four years before committing the offenses that resulted in his discharge.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.


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)                                         AR20130020275



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ABCMR Record of Proceedings (cont)                                         AR20130020275



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