IN THE CASE OF:

   BOARD DATE: 22 July 2014

   DOCKET NUMBER:  AR20130021079


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

2.  The applicant states he was stationed in Camp Owen, Korea and his wife was in labor with his son.  He asked for a compassionate reassignment and was denied.  When he went on leave for 30 days, he was advised by his superiors that if he wanted to go home he should not return from leave.  He should wait 60 days after his leave ended and then turn himself into the authorities.  He was young and did not know any better.  He followed the advice.  He further states that before he could turn himself in, he was arrested in Florida.  He was unable to resolve the situation by himself.  He contends that the attached medical documents show his wife was in labor at the time.  His military records should show he had a lot of potential.  He had every intention of fulfilling his enlistment contract and was career oriented.  But, he also was very concerned about his wife and unborn child.  He asks that this mark on his record be upgraded so he may continue his life with pride and dignity.

3.  The applicant provides copies of:

* Standard Form 88 (Report of Medical Examination), dated 23 December 1977
* DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States), dated 3 January 1978
* Standard Form 88, dated 17 October 1979
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 8 November 1979
* DA Form 2-1 (Personnel Qualification Record – Part II)
* DA Form 2-2 (Insert Sheet to DA Form 2-1 – Record of Court-Martial Conviction)
* Medical records from Southeast Missouri Hospital, dated in 1978 and 1979 (56 pages)

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 2 March 1978, the applicant, at 20 years of age, enlisted in the Regular Army.  He completed his initial training as a power generator and wheeled vehicle mechanic.

3.  Records show the applicant was absent without leave (AWOL) during 14 and 15 May 1978; and again from 2 to 10 July 1978.  There is no available evidence of any punishment rendered for the first period of AWOL; however, he was convicted by summary court-martial on 27 July 1978 for the second AWOL offense.

4.  On 9 September 1978, the applicant was assigned to the 4th Battalion, 7th Cavalry Regiment, 2nd Infantry Division and stationed in the Republic of Korea.

5.  On 17 October 1979, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 for being AWOL from on or about 1 May to 8 October 1979.


6.  On 17 October 1979, a mental status evaluation found the applicant's behavior normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

7.  On 17 October 1979, the applicant consulted with legal counsel and was 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 that were available to him.

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could 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 law.

9.  On 29 October 1979, the separation authority approved the applicant’s request for discharge and directed that he be issued a Certificate of Discharge Under Other Than Honorable Conditions.  On 8 November 1979, the applicant was discharged accordingly.  He had completed 1 year, 2 months, and 19 days of creditable active duty service during this period and had approximately 171 days of lost time.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge UOTHC is normally considered appropriate.
	b.  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 for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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.  

13.  A review of the medical evidence provided by the applicant shows his son was born on 27 February 1979.  The records are difficult to read due to the poor copy quality, but there does not appear to have been any serious complications with either the mother or the child.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded because he was young and did not know any better.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant was 20 years of age when he first enlisted in the Regular Army. He went AWOL on three separate occasions and was convicted by summary court-martial for his second offense.  There is no evidence showing that his age had anything to do with his decision to go AWOL on these occasions.

4.  Furthermore, there is no evidence showing that there were any serious complications with either his wife or child that would have supported an extension of his leave, or the granting of a compassionate reassignment or discharge.

5.  Based on his misconduct, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to any upgrade of his discharge.

6.  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)                                         AR20130021079



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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