RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20080000904 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 be upgraded to a general discharge. 

2.  The applicant’s father states, in effect, that his son was under extreme pressure from his wife and that he had a head injury (a bowling ball rolled off a counter and hit him in the head).  He contends that these two issues might have caused his son to go absent without leave (AWOL).  He points out that his son turned himself in to the military authorities and that his son has his life in order now.  

3.  The applicant provides no additional evidence 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 enlisted on 27 October 1983 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty 11B (infantryman).    

3.  On 21 February 1986 at 2330 hours, the applicant sustained a head injury when he was hit in the head with a bowling ball.  The bowling ball was sitting on top of a counter, the applicant reached to tie his shoe and hit the counter, and the bowling ball rolled off the counter and struck the applicant’s head.  The applicant was taken to the hospital on 22 February 1986 and he was released on 
23 February 1986. 

4.  On 17 April 1986, nonjudicial punishment was imposed against the applicant for failing to go at the prescribed time to his appointed place of duty.  His punishment consisted of a forfeiture of pay (suspended), restriction (suspended), and extra duty. 
5.  The applicant went AWOL on 23 June 1986 and returned to military control on 23 September 1986.  

6.  On 25 September 1986, the applicant signed a Medical Examination for Separation Statement of Option which states, "I understand that I am not required to undergo a medical examination for separation from active duty.  If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a physician at the appropriate medical treatment facility; and if the review indicates that an examination should be accomplished, I will be scheduled for examination based on the results of the review.  I do not desire a separation medical examination."  Apparently, his medical records were reviewed by competent medical authorities and it was determined that a medical examination for separation was not required.  

7.  On 1 October 1986, charges were preferred against the applicant for the AWOL period.

8.  On 2 October 1986, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf. 

9.  On 15 October 1986, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

10.  Accordingly, the applicant was discharged under other than honorable conditions on 7 November 1986 under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service, in lieu of court-martial.  He had served a total of 2 years, 9 months, and 10 days of active service with 93 days of lost time due to AWOL.  

11.  On 3 November 2000, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade.

12.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  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 contention that a head injury might have caused the applicant to go AWOL was noted.  Medical evidence of record shows the applicant was treated for a head injury on 22-23 February 1986.  Evidence of record shows the applicant declined a separation medical examination on 25 September 1986 and it appears his medical records were reviewed by competent medical authorities and it was determined a medical examination for separation was not required.  

2.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to going AWOL.  

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant’s record of service included one nonjudicial punishments and 93 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JM______  __CD__  ___QS___  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.



      ____             JM_____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000904


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