IN THE CASE OF:  	  

		BOARD DATE:  26 February 2015	  

		DOCKET NUMBER:  AR20140012244 


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 correction of his military records to show his under other than honorable conditions (UOTHC) discharge upgraded.
   
2.  The applicant states he was not given adequate counsel and had no support in his efforts to get back to his unit before violating the Uniform Code of Military Justice (UCMJ).  His attempts to contact someone for assistance were unsuccessful.  He believes his young age at the time and his prior commitments should be taken into consideration.  As evidenced by the fact he left all of his personal possessions behind, he contends he had no intention of not returning.

3.  The applicant provides no additional documentation.

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 10 November 1981, the applicant, at 18 years and 2 months of age, enlisted in the Regular Army.  He completed his initial training as a unit supply specialist.

3.  On 5 April 1982, the applicant was assigned to the 573rd Supply and Service Company located in the Federal Republic of Germany where he was advanced to private, pay grade E-2 in August and to private first class, pay grade E-3 in October 1982.

4.  The applicant was absent without leave (AWOL) from on or about 2 January to 30 April 1983.

5.  On 5 May 1983, charges were preferred for the AWOL discussed in the previous paragraph.

6.  On 9 May 1983, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal 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.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.

7.  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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 27 May 1983, the separation authority approved the applicant’s request for discharge and directed that he receive an UOTHC.  On 20 June 1983, the applicant was discharged accordingly.  He had completed a total of 1 year,
3 months and 12 days of creditable active duty service.

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):

	a.  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.

	b.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his UOTHC discharge upgraded because he was young, had other prior commitments, and intended to return to his unit.  He further argues that he was not given counsel or any support by his unit.

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's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 
18 years of age, had satisfactorily completed training and was twice advanced in rank and pay grade.  His satisfactory performance demonstrated his capacity to serve and showed that he was neither too young nor immature.

4.  The available evidence clearly shows he received legal counsel at the time of his discharge and that he voluntarily requested to be administratively separated in lieu of receiving a court-martial.

5.  The applicant's record of good service is greatly diminished by his lengthy AWOL.  Furthermore, he has not provided any documentary evidence or sufficiently mitigating argument to warrant an 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)                                         AR20110020309



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ABCMR Record of Proceedings (cont)                                         AR20140012244



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