IN THE CASE OF:	  

		BOARD DATE:	  30 September 2014

		DOCKET NUMBER:  AR20140003640 


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:

The applicant requests that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable, or to general, under honorable conditions.

2.  The applicant states he was young and foolish at the time served.  He has since become a very active member of society and hopes to join the Veterans of Foreign Wars (VFW) and to possibly apply for veteran's benefits in the future.

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.  On 27 November 1979, at the age of 18, the applicant enlisted in the Regular Army.  He was trained as a motor transport operator.

3.  On 22 July 1981, while assigned to the Republic of Korea, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful general regulation by exceeding his combined spending limit for the commissary and post exchange.

4.  On 18 November 1981, charges were preferred under the UCMJ for violation of Article 86, for being absent without leave (AWOL), during the period 31 July to 17 November 1981 (approximately 106 days).

5.  On 18 November 1981, a mental status evaluation found the applicant's behavior to be normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal, and his memory was good.  The applicant was mentally responsible.  He was capable of participating in the separation process.

6.  On 18 November 1981, 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, 
chapter 10.

7.  In his request for discharge, the applicant indicated 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 25 January 1982, the separation authority approved the applicant’s request for discharge and directed the issuance of a UOTHC discharge.  On 
10 February 1982, the applicant was discharged accordingly.  He had completed 1 year, 11 months, and 1 day of creditable active service and accrued 106 days of lost time.

9.  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.

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

	a.  Chapter 10 states 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 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.  

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for being AWOL more than 30 days is a dishonorable discharge and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative discharge 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.

2.  The applicant's contention that he was young and foolish at the time is not sufficiently mitigating to warrant relief.  The applicant was over 18 years of age, had satisfactorily completed training, and had served almost 2 years before any negative incidents were documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His misconduct and lost time rendered his service unsatisfactory.  

4.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his misconduct and lengthy AWOL.

5.  The applicant's desire to join the VFW and to obtain veteran's benefits is not an appropriate justification to upgrade 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)                                         AR20140003640





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ABCMR Record of Proceedings (cont)                                         AR20140003640



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