IN THE CASE OF:	  

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140000357 


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 an honorable discharge.

2.  He states he experienced hardship due to family dilemma.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a self-authored statement, and two family witness statements.

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 15 June 1977 for a period of three years.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on five occasions for the following offenses:

* Failing to go at the time prescribed to his appointed place of duty
* Wrongfully having in his possession 0.5 ounces, more or less, of marijuana
* Failing to obey a lawful general regulation by not securing his wall locker
* Being derelict in the performance of his duties in that he negligently failed to stay awake while performing duties as a Battalion Guard
* Being absent from his unit

4.  On 11 September 1979, he was barred from reenlistment based on his receipt of his five NJPs.

5.  On 8 May 1980, charges were preferred against the applicant for being absent without leave (AWOL) from 20 September 1979 to 21 April 1980.

6.  On 9 May 1980, he consulted with legal counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.   In doing so, he admitted guilt to the offense charged.  He acknowledged he understood he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued to him.  He did not submit statements in his own behalf.

7.  On 16 May 1980, his company commander recommended approval with issuance of a UOTHC discharge.  The company commander stated the applicant had become disillusioned with the military and retention of this individual was not in the best interest of the Army.

8.  On 20 May 1980, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with a UOTHC discharge.

9.  On 16 June 1980, he was discharged with a UOTHC discharge after completing 2 years, 4 months, and 13 days of creditable active service with 227 days of time lost.



10.  He provided a self-authored statement in which he stated:

	a.  He entered the U.S. Army on 15 June 1977 and he fulfilled his military duties as required until his father became gravely ill.  His father's life-threatening condition affected his attitude and behavior as a Soldier.  Moreover, as his father's illness and time progressed, he found himself torn between his obligations to the military and the desire to be there for his family.

	b.  He made attempts to be granted a hardship discharge from the Army, but he was repeatedly turned down.  As a result, he turned to drugs and alcohol to cope with the matter.  At the time of this ordeal, he continued to pursue his duties as a Soldier.  However, things became so stressful and depressing that he left his post without being properly relieved of his duties.   He wanted to be home with his father and his family because his medical condition had reached its worst.

	c.  After being away from the Army, he realized the magnitude of his actions and the impact that it would have on his service record, so after months of watching his father slowly die, he made a decision to return to the U.S. Army to face whatever punishment was deemed appropriate.  He was then transferred to Fort Sill, OK and discharged UOTHC.

11.  He provided a statement from his brother who stated:

	a.  The applicant was very close with their father and he is the second oldest son of the family.  The applicant took responsibility for supporting the family after their oldest brother enlisted in the U.S. Marines.  Even though their oldest brother was in the military, he was never there physically or financially to support the family.

   b.  Their father was a pastor of a small church and the applicant was the pianist for the church and the choir.  The applicant always did whatever he could to support the family both physically and financially.  The applicant believed that by joining the military he could better provide much needed money to help their family during that time.  During the time of the applicant's enlistment, their father became very sick and was no longer able to work.  Their father was the sole provider for the family until the applicant began sending a $250.00 monthly allotment home to help the family.

	c.  The applicant loved the Army because that was all he would talk about until their father's health worsened.  The applicant became less interested in the military and became somewhat overwhelmed by their father's state of being.

	d.  The applicant came home and was there for a period of time.  He was too young to know anything about being absent from duty, but he remembered overhearing a conversation between his father and the applicant.  Their father told the applicant to turn himself in to the authorities.  After that, the applicant went back to Texas and turned himself in to the military authorities.

12.  He also provided a statement from his oldest sister who stated:

	a.  The applicant enlisted into the military in 1977.  Everything was going well until their father became ill.  Their father underwent two major surgeries that left him needing constant care.  Their father's illness had a major impact on the applicant while he was in the military.

	b.  She remembered that the applicant would come home on leave as often as he could.  The applicant had great intentions on being a U.S. Army Soldier, but he changed after their father's condition had gotten worse.

	c.  The applicant gathered letters of recommendation from doctors, church organizations, and clergymen in order to see if the Army would release him under a hardship discharge.  She does not know what happened, but months later, the applicant was home to help provide aid to their father.

	d.  The applicant didn't tell their father that he had left his duties in the military until sometime later.  It was only after their father began to question the applicant that he came forward with the truth.  After a period of time, their father convinced the applicant to turn himself over to the Army.  The applicant made a decision to go back to Texas to the Army.

13.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 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 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 honorable or general discharge is authorized, a UOTHC discharge 
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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statements that he experienced hardship due to family dilemma and his father's illness were carefully considered.  While the Board is sympathetic, he had many legitimate avenues (chain of command or chaplain) through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge.  

2.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

4.  The evidence of record shows he received five Article 15s, a bar to reenlistment, and was charged with being AWOL for approximately 227 days.

5.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  The evidence of record further does not indicate the actions taken in his case were in error or unjust.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general discharge, and the applicant provides insufficient evidence/argument why it should be upgraded now.


6.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20140000357





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ABCMR Record of Proceedings (cont)                                         AR20140000357



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