IN THE CASE OF: BOARD DATE: 28 February 2012 DOCKET NUMBER: AR20110017853 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 that his under other than honorable conditions (UOTHC) discharge be upgraded. 2. The applicant states he has never applied for Department of Veterans Affairs (VA) benefits because he did not need them. However, he and his wife were laid off and they were unable to find employment for the past 2 years and he discovered that his discharge status is keeping him from obtaining benefits. He contends that he was young and made some errors in judgment at the time of service; however, he was dedicated and determined to move forward in the military and asked for a chance to do so but he was forced to be discharged. 3. The applicant states he is a successful man and great parent and husband. He has made good choices in his life; however, he has been one of the many people left unemployed due to the economy. He is requesting a change in his discharge status so that he may at least have some benefits from the VA and regain some sense of normalcy. 4. The applicant provides no additional evidence. 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 11 July 1980 and upon completion of the required training he was awarded military occupational specialty 12B (Combat Engineer). 3. He accepted nonjudicial punishment on 18 June 1981 for being: a. absent from his place of duty without authority on 28 May 1981; b. absent from his place of duty without authority during the period 1 - 3 June 1981; c. derelict in the performance of his duties by negligently failing to lock all weapons racks in the unit arms room; and d. absent from his place of duty without authority on 28 April 1981. 4. He departed absent without leave (AWOL) on 27 July 1981 and remained AWOL until he surrendered to military authorities on 17 August 1981. 5. On 2 September 1981, he was found guilty by a summary court-martial of being AWOL during the period 27 July - 17 August 1981. He was placed in military confinement on 2 September 1981 as a result of the court-martial conviction. He was released from confinement on 25 September 1981. 6. He departed his unit AWOL on 12 February 1982 and returned to military control on 23 February 1982. He again departed AWOL on 3 March 1982 and remained AWOL until he surrendered to military authorities on 10 March 1982. He was placed in confinement on the same date and released from confinement on 13 March 1982. 7. He again departed AWOL from 13 to 15 March 1982. 8. On 12 April 1982, he was found guilty by a summary court-martial of three specifications of being AWOL. 9. On 26 April 1982, the applicant was advised by his unit commander that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14 for misconduct. He was also advised of his right to: * consult with legal counsel * present his case before an administrative discharge board * be represented by counsel * submit statements in his own behalf * waive his rights in writing 10. On 29 April 1982, he consulted with counsel and elected to waive his rights. He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. He further acknowledged he understood that as a result of the issuance of a UOTHC discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. 11. On 6 May 1982, his unit commander submitted the recommendation for discharge to his higher headquarters. The commander cited as the reasons for the propose separation the applicant's pattern of misconduct and an established pattern of shirking. The commander further stated the applicant had gone AWOL five times and was totally lacking in motivation and self-discipline. The applicant arrived to his unit from a retraining brigade after being court-martialed for AWOL but obviously learned nothing from the experience. 12. On 24 May 1982, the appropriate separation authority approved the recommendation and directed the issuance of a Under Other than Honorable Conditions Discharge Certificate. On 2 June 1982, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 8 months, and 14 days of creditable active duty service and approximately 70 days of lost time due to being AWOL and in confinement. Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "Misconduct - An Established Pattern of Shirking." 13. There is no evidence that indicates he applied to the Army Discharge Review Board for an upgrade of his discharge. 14. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 15. Army Regulation 635-200, 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. 16. 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's contention that his UOTHC discharge should be upgraded so he may obtain VA benefits has been carefully considered. However, the ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for VA benefits. 2. The available evidence confirms his separation processing was accomplished in accordance with the applicable regulations. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 3. He contends that he was young at the time; however, he completed initial entry training. This shows he was mature enough to satisfactorily serve. There is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their terms of military service. 4. His record of indiscipline includes nonjudicial punishment, two court-martial convictions, and approximately 70 days of lost time. Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel. This record of misconduct also rendered his service unsatisfactory. Therefore, he is not entitled to either an honorable or general discharge. 5. In view of the foregoing, there is no basis for granting the applicant's 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) AR20110017853 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110017853 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1