PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 8 November 2001
         DOCKET NUMBER: AR2001062583


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Ms. Karen Y. Fletcher		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to a general, under honorable conditions discharge (GD).

3. The applicant states, in effect, that prior to the absent without leave (AWOL) incident that led to his discharge, he was a model soldier for more than 3 ½ years. He also indicates that he hopes the Board will consider his overall record of service and see that it warrants a discharge more favorable than UOTHC. In addition, he claims that he suffered from back problems and for some reason military medical personnel were unable to properly diagnose his condition. He was forced to continue working with this condition and was told he would face disciplinary action if he did not continue to work. He felt compelled to go AWOL and seek civilian medical help and to obtain more employment that is comfortable. Further, he comments that had he been truly faking his back problems he would have not waited until he had already served more than 3 ½ years. He concludes that he does not condone going AWOL and realizes that it was wrong to do so. However, he was desperate and felt he had no choice. He concludes that, given the current state of technology, he is confident his medical condition would have been properly diagnosed now and that this medical condition was a mitigating factor in his misconduct. He now requests that his overall record of service be considered along with the mitigating medical difficulties he suffered and that his discharge be upgraded as a result.

4. The applicant’s military records show that on 29 February 1984, while assigned to Fort Sill, Oklahoma, he reenlisted for 5 years. At that time, he had already completed 2 years, 10 months, and 13 days of active military service, attained the rank of specialist four (SP4), and held military occupational specialty (MOS) 15E (Pershing Missile Crew Member).

5. The applicant’s Personnel Qualification Record (DA Form 2-1) confirms that he completed an overseas tour in Germany in January 1983 and on 1 February 1984, he was promoted to SP4, which was the highest rank he held on active duty. In addition, it verifies he earned the following awards during his active duty tenure: Army Service Ribbon; Overseas Service Ribbon, and Marksman Marksmanship Badge-M16 Rifle/Hand Grenade.

6. Although not entered in his DA Form 2-1 or separation document (DD Form 214), the applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of Permanent Orders Number 066-024, dated 9 April 1994, which awarded him the Army Good Conduct Medal, for the period 15 April 1981 to 14 April 1984, for exemplary behavior, efficiency, and fidelity in active Federal military service.

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7. The applicant’s record is void of any disciplinary history prior to the AWOL related misconduct that ultimately led to his discharge. On 13 December 1984, he departed AWOL from his unit and on 10 January 1985, he was dropped from the rolls of his organization. He remained away for 56 days until returning to military control on 6 February 1985.

8. A court-martial charge was preferred against the applicant for being AWOL from 13 December 1984 to 6 February 1985. On 25 February 1985, he consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), and the possible effects of a UOTHC discharge. He then voluntarily requested to be discharged for the good of the service/in lieu of court-martial under the provisions of chapter 10,
Army Regulation 635-200.

9. The applicant’s request for discharge and the accompanying commander’s summary sheet indicated that the applicant claimed that he had been having back problems for six months and doctors could not find anything wrong. Further, he stated that he only decided to go AWOL after his chain of command informed him that if he continued to complain of back problems, they would initiate nonjudicial punishment (NJP) action against him for malingering. Finally, he stated that he tried to stick it out but the pain became so severe he finally went AWOL. There were no military medical records available to the Board for review that confirm the existence of a back problem or contain a record of treatment for this condition.

10. On 6 March 1985, the appropriate authority approved the applicant’s request and directed he be discharged UOTHC and that he be reduced to the lowest enlisted grade. On 22 March 1985, he was discharged accordingly after completing a total of 3 years, 9 months, and 12 days of creditable active military service and having accrued 56 days of time lost due to AWOL.

11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An honorable or general discharge may be granted; however, an UOTHC discharge is normally considered appropriate for members separating under these provisions.

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CONCLUSIONS:

1. The Board notes the applicant’s contention that his discharge should be upgraded based on his overall record of service and the fact that his back problem was a mitigating factor for the misconduct that led to his discharge.

2. The evidence of record confirms that his discharge processing was accomplished in accordance with applicable regulations and the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3. In addition, there is no medical evidence of record to confirm the applicant’s back problems or that documents his treatment for this condition. However, the record does clearly show that he raised this issue in his discharge request and that he cited the chain of command’s reaction to it as the basis for his going AWOL. Therefore, while the Board does not find this was a sufficient reason for his going AWOL, it does conclude that his perception of a medical problem may have influenced his misconduct.

4. While the Board does not condone the applicant’s AWOL related misconduct, it does find his perceived medical problems, coupled with the lack of a prior disciplinary history and the honorable nature of the preponderance of his almost 4 years of military service, are sufficiently mitigating to warrant an upgrade of his UOTHC discharge.

5. It is clear that the applicant’s AWOL related misconduct diminished the quality of his service below that warranting a fully honorable discharge. However, based on the cited mitigating factors and the honorable nature of the preponderance of his military service, as evidenced by his being awarded the Army Good Conduct Medal for the period 15 April 1981 to 14 April 1984, the Board concludes that it would be in the interest of equity to upgrade his discharge to a GD and to restore his grade to SP4 accordingly.

6. The Board also notes that the Army Good Conduct Medal awarded the applicant was erroneously omitted from his separation document and it concludes it would be appropriate to add it at this time.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned received a general, under honorable conditions discharge, on 22 March 1985, in lieu of the under other than honorable conditions discharge of the same date he now holds; that he held the rank of SP4 on the date of his discharge; that he was awarded the Army Good Conduct Medal; and that he be provided a corrected separation document that reflects these changes.

BOARD VOTE:

__FNE __ __BJE__ __KYF __ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




         ___Fred N. Eichorn __
                  CHAIRPERSON

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INDEX

CASE ID	AR2001062583
SUFFIX
RECON
DATE BOARDED	2001/11/08
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1985/03/22
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.