RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070015352 


	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.









      The following members, a quorum, were present:













	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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he is aware he has made no attempt to upgrade his discharge over the last 16 years; however, he served in Southwest Asia (SWA) during Operation Desert Shield/Storm and his wife was beaten and raped during this period.  He claims that he was not allowed to take leave from the combat zone during this traumatic time in his wife’s life to help her to cope with that situation, and as a result both he and his wife experienced serious emotional distress, which took its toll on them.  He also states that two weeks after he returned from his deployment, his wife committed suicide.  As a result, he indicates he lost control while dealing with the guilt, and he departed absent without leave (AWOL) for about thirty days.  He states that immediately upon his return to duty from being AWOL, he was processed for separation and not given any counseling to help him deal with his wife’s suicide.  Instead he indicates he was just kicked out of the Army.  He states it is his belief that the Army should have offered him emergency leave from his deployment after his wife’s rape, and he should have been given counseling after her death and upon his return from being AWOL.  He finally asks the Board to consider the mitigating factors in his case and grant him an upgrade of his UOTHC discharge.

3.  The applicant provides a self authored statement and a copy of his separation document (DD Form 214) 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 record shows that after having previously served in the Army National Guard (ARNG), he enlisted in the Regular Army and entered active duty on 17 April 1990.  He was trained in, awarded, and served in military occupational specialty (MOS) 16S (Man Portable Air Defense Pedestal Mounted Stinger Crewmember).

3.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments and Reductions), that he was first promoted to the rank of private first class (PFC) on 1 November 1990, and that this was the highest grade he attained while serving on active duty.  Item 5 (Overseas Service) shows he served in Saudi Arabia from 11 September 1990 to 1 April 1991.

4.  On 24 October 1991, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 20 July 1991 through on or about 27 September 1991.

5.  On 28 October 1991, 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.

6.  In his request for discharge, the applicant acknowledged his understanding that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UOTHC discharge.

7.  On 29 October 1991, the applicant submitted a statement on his own behalf to the separation authority.  In it he admitted his wrongdoing in departing AWOL and indicated that prior to this single instance of misconduct; he had no prior discipline problems, Article 15s, or records of Court-Martial.  He also indicated that he returned from deployment to a wife who had been severely beaten and raped, and whose three year old daughter was removed from her care. 


8.  The applicant also indicated that at that time, he was the single parent of his three year old daughter, given his wife’s recent suicide.  He also stated that he had previously requested to be released from his contract because of the great family strain he experienced, and he requested the separation authority consider these factors in allow him to separate with a general, under honorable conditions discharge (GD) instead of an UOTHC discharge.  

9.  The separation packet includes statements from two noncommissioned officers (NCOs) who attested to the applicant’s hard work and dedication, which allowed him and his Team Chief to return from deployment safely.  They further confirmed the applicant's knowledge of specific military weapons and air defense tactics, expertise on the job, ability to work with minimal supervision, and hard work.  One of the statements indicated that it was understandable that the applicant’s conduct fell below standards from time to time given his stressful family situation and his separation from them during deployment.  It also reveals that the applicant was desperately asking for help and only departed AWOL when he thought it was the only possible solution.

10.  On 5 November 1991, 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 Certificate.  On 
12 November 1991, the applicant was discharged accordingly.

11.  The separation document (DD Form 214) issued to the applicant upon his discharge confirms he was separated under the provisions of Chapter 10, 
Army Regulation 635-200, and that he completed a total of 1 year, 4 months, and 16 days of active military service with 70 days lost time during the period 20 July to 27 September 1991. 

12.  Item 13 of his separation document shows he earned the following awards during his tenure on active duty:  Army Service Ribbon; Air Assault Badge; National Defense Service Medal; Southwest Asia Service Medal with 2 bronze service stars; Army Commendation Medal; Marksman Marksmanship Qualification Badge with Rifle Bar; Expert Marksmanship Qualification Badge with Grenade Bar; and Sharpshooter Qualification Badge with Pistol Bar.  

13.  There is no evidence of record to show that the applicant petitioned the 
Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15 -year statute of limitations.


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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  Although an under other than honorable conditions is normally considered appropriate, an honorable or general discharge is authorized.

CONCLUSIONS:

1.  The applicant’s contention that his UOTHC discharge should be upgraded based on the extreme family problems he experienced that eventually led to his wife's suicide was carefully considered.  Although the applicant's separation processing was accomplished in accordance with the applicable regulation, there are mitigating factors and equity considerations that should be considered in this case.  

2.  Although there was no error related to the applicant's discharge processing, the evidence of record confirms his wife was raped while he was serving in SWA, and that she committed suicide shortly after his return to the United States.  In addition, he experienced emotional stress as a result of his wife's suicide and due to becoming responsible for the care of his three year old daughter as a single parent.  Although his AWOL is not condoned, the family situation he faced and his belief that going AWOL was the only possible solution to his problems are compelling mitigating factors for his misconduct.  

3.  The evidence of record also shows that prior to the family problems the applicant had an excellent record, which included combat service.  Although his AWOL related misconduct clearly diminished the overall quality of service below that meriting a fully honorable discharge, given the mitigating factors and his overall record of service, it would be appropriate and serve the interest of compassion and equity to upgrade the applicant's UOTHC discharge to a GD at this time.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__PHM__  __JGH __  __KSJ __  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the individual concerned received a general, under honorable conditions discharge on 12 November 1991, in lieu of the under other than honorable conditions discharge of the same date he now holds; and by providing him a corrected separation document that reflects these changes.  

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 his discharge to fully honorable.  




      _____PHM                ____
                CHAIRPERSON

ABCMR Record of Proceedings (cont)                                         AR20070015352


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508