BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20150002244


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:

	a.  he enlisted in the Army with his mind made up to be all that he could be;

	b.  upon completion of initial entry training, he was given orders to report to Fort Lewis, Washington for further assignment to Thailand, and authorized 30 days leave;

	c.  while home on leave, his mother became very sick and because he was the last of his siblings living at home prior to his enlistment in the Army, he could not pull himself away to go overseas at that time;

	d.  he was subsequently picked up and put into the stockade where, when he called Red Cross and Fort Lewis, Washington officials, he was told nothing could be done;

	e.  accordingly, he began to have bad feelings about the Army and made up his mind to go absent without leave (AWOL); 

	f.  while in the stockade, he initiated a request for discharge to go home to be with his sick mother where he remained until she went home to be with God; and 

	g.  his medical records will show his knees were messed up during basic combat training.

3.  The applicant provides a self-authored statement.

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 (RA) on 13 January 1969.  Upon completion of initial entry training he was awarded military occupational specialty 61A (Seaman).

3.  His record shows he accepted non-judicial punishment under the Uniform Code of Military Justice three times on the following dates as indicated:

* 8 May 1969, failing to go at the time prescribed to his appointed place of duty on 5 May 1969
* 12 June 1970, being AWOL from 3 – 6 June 1969
* 16 January 1970, being AWOL from 22 – 31 December 1969 and for disobeying a lawful order

4.  His record shows that, on 14 October 1969 pursuant to his plea, a summary court-martial convicted him of being AWOL from 4 August though 18 September 1969.  The resultant sentence was a forfeiture of $175.00 pay for 1 month and a reduction to private (PVT/E-1).

5.  His DA Form 20 (Enlisted Qualification Record) shows he was reported AWOL eight additional times during the following periods:

* 23 October – 17 November 1969 (26 days)
* 17 – 18 November 1969 (2 days)
* 21 – 25 January 1970 (5 days)
* 9 February 1970 (1 day)
* 20 February – 2 April 1970 (42 days)
* 12 May – 16 July 1970 (66 days)
* 17 July – 3 August 1970 (27 days/Pre-trial Confinement)
* 17 August 1970 – 3 February 1972 (535 days)

6. The applicant's Official Military Personnel File is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a DD Form 214 that shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), for the good of the service in lieu of trial by court-martial.

7.  His DD Form 214 also shows he was discharged on 4 May 1972, with a UOTHC characterization of service after completing 1 year, 4 months and 5 days of creditable active military service.  It also shows he accrued 698 days lost time.

8.  On 29 June 1981, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded his discharge was proper and equitable, and voted to deny his request for an upgrade.

9.  The applicant's military record contains no medical evidence and he provides no evidence to show he suffered from knee problems as he claims.

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

	a.  Chapter 10 provides, in part, 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.  Although an honorable discharge (HD) or general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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 GD 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 HD. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded because he only departed AWOL to go home to attend to his sick mother and because his knees were messed up during basic combat training.  However, his record shows he repeatedly departed AWOL more than eight times totaling 698 days and there is no evidence to show he suffered from any medical condition at any time during his military service that would warrant an upgrade of his discharge. 

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a DD Form 214 that identifies the reason and characterization of the applicant's discharge.  This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service and that he received a UOTHC discharge.  This separation document carries with it a presumption of government regularity in the separation process.

3.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  He would have voluntarily requested separation from the Army in lieu of trial by court-martial and procedurally he was required to consult with defense counsel.

4.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

5.  The applicant claims his knees were messed up during basic training.  However, the available evidence of record contains no documents to support this claim.  It does confirm he successfully completed the vigorous demands of his initial entry training, which included basic combat training and his advanced individual training.  Further he continued to serve between multiple periods of AWOL until he was discharged.  



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)                                         AR20150002244





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ABCMR Record of Proceedings (cont)                                         AR20150002244



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