IN THE CASE OF:  

		BOARD DATE:  29 January 2015	  

		DOCKET NUMBER:  AR20140009837 


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 given a UOTHC discharge because he went absent without leave (AWOL) for approximately 2 weeks
* he requested leave that was denied, which is why he went AWOL
* prior to going AWOL he had not been in any trouble
* he realizes that he made a bad judgment call when he went AWOL
* since his discharge he has not been in any trouble and has become a productive citizen
* he is asking for an upgrade of his discharge so that he can obtain benefits through the Department of Veterans Affairs (VA) for injuries he sustained while in the U.S. Army
* he was not aware that he had to apply for an upgrade of his discharge until he tried to apply for healthcare through VA
* he was told that his discharge would automatically be upgraded after 6 months

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and 2 letters of support. 



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 16 July 1980.  After completing initial entry training, he was awarded military occupational specialty 51R (Electrician).

3.  The available evidence indicates the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:
 
* On 12 August 1982, for failure to go to his appointed place of duty at the prescribed time
* On 23 August 1982, for failure to go to his appointed place of duty 
* at the prescribed time

4.  On 4 March 1983, charges were preferred against the applicant for being AWOL from 1 November 1982 through on or about 2 March 1983.

5.  On 9 March 1983, the applicant consulted with 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 procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial and admitted that he was guilty of the charge against him.

6.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to make a statement in his own behalf.
7.  On 16 March 1983, his commander recommended approval of his request for discharge.  He stated that he had become disillusioned with the military and rehabilitation efforts were considered futile.  He recommended issuance of a UOTHC discharge.

8.  On 30 March 1983, the separation authority approved the applicant’s request and directed he receive a UOTHC discharge and be reduced to PVT/E-1.

9.  On 11 April 1983, the applicant was discharged accordingly.  He completed 2 year, 3 months, and 25 days of creditable active military service with 122 days of time lost due to being AWOL.

10.  On 15 November 1996, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel)
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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

	b  Paragraph 3-7a provides than 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 members service 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 ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The Army does not have nor has it ever had a policy of automatically upgrading discharges based on the passage of time.

3.  The evidence of record does not support the applicant's request for an upgrade of his UOTHC discharge.

4.  His record includes NJP under the provisions of Article 15 of the UCMJ.

5.  His record also shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial which may have resulted in a felony conviction.

6.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

7.  He contends he was AWOL for approximately 2 weeks; however, records show he was AWOL for 122 days.

8.  His lengthy period of AWOL rendered his service unsatisfactory.  There is no documentary evidence of mitigating factors that would warrant changing the separation authority's determination that he would receive an under other than honorable conditions discharge.  Therefore, there is an insufficient basis upon which to grant the 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)                                         AR20140009837



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ABCMR Record of Proceedings (cont)                                         AR20140009837



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