IN THE CASE OF: BOARD DATE: 9 September 2010 DOCKET NUMBER: AR20100009604 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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general, under honorable conditions discharge (GD). 2. The applicant states that: * he desires an upgrade of his UD for medical benefits and employment purposes to provide for his family * he apologizes for his insubordination while on active duty * he was young and confused with the pressures from his family while in the Army * he was a good Soldier until the pressures got so great, that he made the wrong decision for which he is still currently paying for * he has been a productive member of society and he now realizes the importance of completing the task at hand * he served his country honorably and proudly 3. The applicant provides a self authored statement in support of his application. 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's military record shows he entered active duty in the Regular Army on 12 November 1978. He completed basic combat training at Fort Knox, Kentucky and advanced individual training (AIT) at Fort Benning, Georgia. Upon completion of AIT, he was awarded military occupational specialty (MOS) 11B (Infantryman). 3. On 6 August 1979, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for twice being absent without leave (AWOL) from 25 – 27 June 1979, and from 2 – 18 July 1979. 4. On 21 January 1981, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL from 2 October 1979 to 6 January 1981. 5. On 23 January 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 UOTHC discharge, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 6. In his request for discharge, the applicant acknowledged he understood that 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. He also indicated that he understood he could face substantial prejudice in civilian life because of a UOTHC discharge and elected not to submit a statement on his own behalf. 7. On 3 February 1981, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed he receive an UOTHC discharge. On 13 March 1981, the applicant was discharged accordingly. 8. The DD Form 214 (Report of Separation from Active Duty) issued to the applicant upon his discharge confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, by reason of Administrative Discharge Conduct Triable by Court-Martial. It also shows he completed 1 year of creditable active military service. 9. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of this regulation provides, in pertinent 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 and must include the individual's admission of guilt. Although an HD or a general discharge (GD) is authorized, at the time of the applicant's separation, the regulation provided for the issuance of a UD. 11. Army Regulation 635-200, 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 his UOTHC discharge should be upgraded to an GD. 2. The evidence of record shows the applicant accepted NJP for twice being absent without leave and he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL on two separate occasions. After consulting with legal counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. 3. The applicant’s three separate periods of AWOL rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge. 4. 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) AR20100009604 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100009604 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1