RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070013195 


	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.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 that his discharge under other than honorable conditions (UOTHC) be upgraded to general under honorable conditions.

2.  The applicant states that his girlfriend became pregnant with their son.  She was thrown out of her home for becoming pregnant.  She was only 16 years old, homeless and abandoned by her family, and she felt that her only option was to have an abortion.  That situation eventually led him to leave without authorization to care for and support his future wife and child.

3.  The applicant states that he does not believe in abortion.  It is against his ethical, moral, and religious beliefs to end an unborn life.  For that reason, he returned home to marry his girlfriend and raise their son.  He did not mean to intentionally dishonor the Army or himself.  His only desire was to prevent his unborn son from being aborted and to provide a home for his mother.  

4.  The applicant provides his marriage license and certificate and his son’s birth certificate.

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 6 September 1990.  He completed basic training.  

3.  The applicant went absent without leave (AWOL) from 25 through                 28 November 1990.  


4.  The applicant completed AIT and was awarded military occupational specialty (MOS) 63E (M1 Abrams Tank System Mechanic).

5.  The applicant departed AWOL on 17 February 1991 and returned to military control on 11 March 1991.  A Checklist for Administrative Discharge Actions indicates he was convicted by a summary court-martial for this AWOL.

6.  The applicant departed AWOL on 27 March 1991 and returned to military control on 4 April 1991.  He departed AWOL again on 26 April 1991.

7.  The applicant married on 31 May 1991.

8.  The applicant surrendered to military authorities on 27 August 1991.

9.  On 5 September 1991, court-martial charges were preferred against the applicant, charging him with being AWOL from on or about 26 April 1991 to on or about 27 August 1991.

10.  On 5 September 1991, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He indicated that he did submit a statement in his own behalf; however, no statement is available.

11.  On 24 September 1991, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

12.  On 16 October 1991, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed 8 months and 2 days of creditable active service and had 139 days of lost time.

13.  On 22 November 1991, the applicant’s son was born.


14.  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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  

15.  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 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.

2.  The applicant’s ethical, moral, and religious beliefs concerning abortion have been considered.  However, it is noted that he first went AWOL in November 1990, 12 months prior to the birth of his son.  He next went AWOL in February 1991, 9 months prior to the birth of his son.  He then went AWOL twice more.

3.  There is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__dkh___  __jrh___  __eem___  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.




__David K. Haasenritter
          CHAIRPERSON




INDEX

CASE ID
AR20070013195
SUFFIX

RECON

DATE BOARDED
20080125
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19911016
DISCHARGE AUTHORITY
AR 635-200, ch 10
DISCHARGE REASON
A70.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.