RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 September 2005
	DOCKET NUMBER:  AR20050001263


	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. Robert J. McGowan

Analyst

The following members, a quorum, were present:


Mr. Ronald E. Blakely

Chairperson

Mr. Lawrence Foster

Member

Ms. LaVerne M. Douglas

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, extraordinary family circumstances led to his being absent without leave (AWOL).  When he returned, court-martial charges were preferred against him and, after consulting with legal counsel, he requested discharge for the good of the service under chapter 10, Army Regulation (AR) 635-200, in lieu of trial by court-martial.

3.  The applicant provides:

	a.  Two personal statements written on 6 and 14 December 2004.

	b.  A copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty) for the period 19810401-19840502.

	c.  A copy of his DA Form 20 (Personnel Qualification Record).

	d.  A copy of his brother Timmy's Certificate of Death, dated 4 May 1982.

	e.  Copies of the Certificates of Death for Timmy's wife and 3-year old child, dated 4 May 1982.

	f.  Pictures of his brother Billy in March 1983 and January 1984 after he became a paraplegic following a motor vehicle accident.

	g.  A copy of his brother Billy's Certificate of Death, dated 8 January 1986.

	h.  A 12 December 2004 letter of support from a family friend.

	i.  Two letters of support written by his sisters.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 2 May 1984.  The application submitted in this case is dated 6 January 2005.


2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was born on 10 September 1958, the third son in a family of 3 boys and 2 girls.  He grew up in the vicinity of Mercer County, West Virginia.  His oldest brother, Timmy, was born in November 1949 and his second brother, Billy, was born in April 1953.

3.  The applicant enlisted in the Regular Army at Beckley, West Virginia for 3 years on 1 April 1981.  He successfully completed basic combat training and advanced individual training at Fort Knox, Kentucky.  His first permanent duty assignment was in Korea where he served with Company C, 1st Battalion, 31st Infantry, 2nd Infantry Division from 16 August 1981 through 11 August 1982.

4.  While he was in Korea, his oldest brother died in a house fire on 4 May 1982. Also killed in the fire were the applicant's sister-in-law and 3-year old niece.  The applicant was permitted to go home from Korea on emergency leave to attend the funerals.  He returned to Korea and completed his tour.  On 13 September 1982, he reported for duty at Fort Stewart, Georgia.

5.  The applicant was AWOL from his unit at Fort Stewart from 1-5 July 1983 (4 days).  He states he went home to West Virginia because his brother, Billy, was depressed over an impending divorce and also the death of Timmy.  He attempted suicide, but the applicant thwarted the attempt.  The applicant returned to Fort Stewart.  There is no record of punishment in the applicant's file for this period of AWOL.

6.  On 3 August 1983, the applicant again went AWOL and returned to West Virginia.  During this period, his brother went through a divorce and was in a depressed state of mind.  In January 1984, he crashed his vehicle into a tree and suffered paralysis of his lower body.  The applicant stayed with his family through this time, but eventually returned to military control at Fort Stewart on 8 February 1984.  He was transferred to the Personnel Control Facility at Fort Bragg, North Carolina.

7.  Court-martial charges were preferred against the applicant for being AWOL for 189 days.  He consulted with legal counsel and had his rights and options explained to him.  He requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200.  His request was approved and he was discharged with a UOTHC discharge on 2 May 1984.  He had 2 years, 6 months, and 22 days of creditable service and 193 days of lost time due to AWOL.  Except for the two periods of AWOL, the only blemish on the applicant's record is a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for not reporting to his place of duty on time.

8.  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.  A discharge under other than honorable conditions is normally considered appropriate.  

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

10.  Subsequent to the applicant's UOTHC discharge, his brother, Billy, died in a house fire on 8 January 1986 when he could not exit the building because of his paralysis.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted on 1 April 1981 and served honorably and without incident until 1 July 1983.

2.  During his service, the applicant's family experienced devastating personal tragedy with the loss of the applicant's eldest brother and his brother's family in May 1982.  This tragedy, coupled with marital difficulties, led the applicant's second brother, Billy, into depression and at least one unsuccessful suicide attempt.  The applicant went AWOL to be with his family during this time of tribulation.  In January 1984, Billy crashed his vehicle into a tree and became a paraplegic.

3.  In February 1984, the applicant returned to military control and ultimately accepted a chapter 10, AR 635-200 UOTHC discharge.  He returned home to West Virginia where, 18 months later, his paraplegic brother died in a house fire.

4.  The applicant went AWOL.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  This request, even after appropriate and proper consultation with a military lawyer who explained the ramifications of a UOTHC discharge, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

5.  While the Board does not condone the applicant's behavior and finds nothing improper about the manner in which he was discharged, it does find his tragic family situation sufficiently extenuating and mitigating as to warrant a degree of clemency.  Therefore, the applicant's UOTHC discharge, given all of the facts in this case, is deemed overly harsh.  His record should be corrected as indicated below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__reb___  __lf____  __lmd___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected only by upgrading the characterization of the applicant's UOTHC discharge to general, under honorable conditions.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading of his discharge to fully honorable.

						Ronald E. Blakely
______________________
          CHAIRPERSON

INDEX

CASE ID
AR20050001263
SUFFIX

RECON

DATE BOARDED
20050927
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19840502
DISCHARGE AUTHORITY
AR 635-200 C10
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
110.0000
2.

3.

4.

5.

6.