IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140017264 


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 discharge under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states:

* he was never in any trouble throughout his military career
* he went on leave to try to stabilize his family, which included his wife, his 
2-year old son, his mother, and his autistic sister
* he was very young and didn't know what to do
* he has been a very productive and law-abiding citizen since his discharge
* what he did was wrong

3.  The applicant provides correspondence from a Member of Congress, dated 16 September 2014.

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 was born on 4 October 1958.  He enlisted in the Regular Army on 14 November 1978 for 4 years at 20 years of age.  He completed his training and was awarded military occupational specialty 55B (ammunition specialist).

3.  Records show he was absent without leave (AWOL) from:

* 19 January 1981 to 4 February 1981 (17 days)
* 7 July 1981 to 1 January 1982 (179 days)

4.  His records are void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged UOTHC in lieu of trial by court-martial effective 11 March 1982 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, Administrative Discharge – Conduct Triable by Court-Martial.  He completed 2 years, 8 months, and 17 days of creditable active duty service this period and accrued approximately 196 days of lost time due to AWOL.

5.  There is no evidence that shows he sought assistance to resolve his family problems through his chain of command or the unit chaplain.

6.  There is no evidence in the available records that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  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 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 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 contends he went on leave to resolve family problems.  However, his records show he was AWOL on two separate occasions for a total of approximately 196 days.  There is no evidence that shows he sought assistance to resolve his family problems through his chain of command or the unit chaplain.  Nonetheless, family problems are normally not a basis for upgrading a discharge.

2.   His contention that he was very young was noted; however, his age is not a sufficiently mitigating factor.  He was 20 years old when he enlisted and he successfully completed his training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their terms of military service.

3.  He contends he has been a very productive and law-abiding citizen since his discharge.  However, good post-service conduct in and of itself is not a basis for upgrading a discharge.

4.  His records are void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed that his final discharge accurately reflects his overall record of service during the period under review.

5.  In view of the foregoing information, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.
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 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)                                         AR20140017264



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ABCMR Record of Proceedings (cont)                                         AR20140017264



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