IN THE CASE OF:	  

	BOARD DATE:	  22 May 2008

	DOCKET NUMBER:  AR20080003871 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

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

2.  The applicant states, in effect, that the incident that resulted in his discharge UOTHC was an isolated incident.  His 105 days of absence without leave (AWOL) was due to the fact that he had a newborn daughter who was hospitalized in Kansas City, KS.  He had requested leave several times, but      he was denied.  As a young man of 19, he was unable to deal with the circumstances of not being able to help his family and still fulfilling his responsibilities and duties to the Army.  Having to make that choice was too much to handle and resulted in his bad decision.  Upgrading his discharge will enable him to seek the medical help he needs and that he deserves for serving his country.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 4 November 1980.  He completed basic training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewman).

3.  On 7 April 1981, the applicant was issued a letter of reprimand for suspected use of marijuana in his billets room.  The applicant indicated that he read and understood the unfavorable information presented against him and elected not to submit a statement or document in his behalf.  The letter was filed in his Military Personnel Records Jacket.

4.  The applicant’s DD Form 214 shows he had lost time from 2 through 3 May 1981, from 1 through 29 June 1981, and from 30 June through 11 September 1981.

5.  On 23 September 1981, the applicant completed a mental status evaluation.  He was found to have the mental capacity to understand and participate in proceedings, to be mentally responsible, and he was cleared for any administrative action deemed appropriate by his chain of command.

6.  The applicant’s discharge packet is not available; however, his Army Discharge Review Board (ADRB) proceedings indicated that on 30 September 1981 the applicant consulted legal counsel; requested discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial; and submitted a statement in his own behalf.  That statement is not available, and the ADRB did not indicate what was in his statement.  

7.  On 1 October 1981, the applicant completed a separation physical and was found qualified for separation.

8.  The applicant’s ADRB proceedings indicated that on 6 October 1981 the separation authority approved the applicant’s request and directed he receive a discharge UOTHC.

9.  On 18 January 1981, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, conduct triable by court-martial, with a discharge UOTHC.  He had completed 11 months and 1 day of creditable active service and had 105 days of lost time.

10.  On 22 April 1991, the applicant applied to the ADRB for a discharge upgrade.  In his application, he stated, “I was scared for my life, all I experenced (sic) was mental pain and physical pain by the other soldiers in my unit.  I got hurt in the mess hall and the guys in my unit said that I was fakeing (sic).  They kept jumping on me.  They stole every single thing I had. (sic) including equipment and I am still presently paying for this.”  He also stated, “I was scared for my life, because they came in my room at night and beat me and harassed me.  I was even threaten (sic) many times.  I just didn’t want any trouble any more so I went AWOL.”  On 2 August 1996, the ADRB denied the applicant’s request for a discharge upgrade.

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.  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.  

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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.  In the absence of evidence to the contrary, it is presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation        635-200, chapter 10, conduct triable by court-martial, was administratively correct and in conformance with applicable regulations.  
2.  The applicant contended that his 105 days of AWOL was due to the fact that he had a newborn daughter who was hospitalized in Kansas City, KS.  He had requested leave several times, but he was denied.  

3.  Even if the applicant had been granted leave, he would never have been authorized to take much more than 30 days leave.  More importantly, when the applicant applied to the ADRB, he did not mention having to go AWOL because of a sick, newborn daughter.  There is no evidence of record and the applicant provided no evidence to support either of his explanations as to why he went AWOL.

4.  It is also noted that the applicant had received a letter of reprimand shortly before he went AWOL for which he provided no rebuttal comments.  It appears that his record of service during his seven months in the Army prior to going AWOL was not entirely spotless.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ____xx__  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.



	__________xxx__________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080003871



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ABCMR Record of Proceedings (cont)                                         AR20080003871



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