IN THE CASE OF:	  

		BOARD DATE:	       18 November 2008

		DOCKET NUMBER:  AR20080011258 


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 his discharge be upgraded.

2.  The applicant states he served most of his three year enlistment and left the service due to emotional instability caused by the death of a family member.

3.  The applicant provides no additional documents.

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 for 3 years on 26 November 1986. Following Basic Combat Training (BCT) at Fort Jackson, SC and Advanced Individual Training (AIT) at Fort Gordon, GA, he was awarded military occupational specialty (MOS) 32D (Fixed Station Technical Controller).  He then received orders for an assignment in Korea.

3.  The applicant did not report for overseas transfer to Korea.  Instead, he was declared absent without leave (AWOL) and eventually was dropped from the rolls of the Army as a deserter.  The applicant was AWOL from 16 Jul 1987 until he returned to military control at Fort Hamilton, NY on 20 August 1987.  There is no record concerning the disposition of this period of AWOL.

4.  On 6 October 1987, the applicant was transferred to Korea, where he was assigned to the 501st Signal Company, Camp Humphries.  On or about 6 April 1989, he departed Korea on leave en route to an assignment at Fort Bragg, NC.

5.  The applicant did not report to Fort Bragg on 6 May 1989 and was again declared AWOL.  He remained AWOL until 11 August 1989 when he surrendered to military authorities at Fort Hamilton.  He was transferred to the Personnel Control Facility at Fort Dix, NJ.

6.  On 23 August 1989, the applicant was formally charged with AWOL from
6 May 1989 to 11 August 1989.  On the same date, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In so doing, he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge.  He stated that he understood the nature and consequences of the under other than honorable conditions (UOTHC) discharge that he might receive.  He submitted a statement in his own behalf in which he said he had been a good Soldier and had received an Army Commendation Medal in Korea.  However, he had family problems and he went AWOL between assignments to straighten them out.  He added that he did not want to be discharged.

7.  The applicant was sent home on excess leave without pay to await a decision on his chapter 10 discharge.  On 15 September 1989, the approval authority approved the applicant’s request and directed he be issued a UOTHC discharge. On 10 October 1989, the applicant was separated with a UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  He had 2 years, 6 months, and 3 days of creditable active service and 131 days of lost time due to two periods of AWOL.

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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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 would like a discharge upgrade.

2.  The applicant had two periods of AWOL.  His first AWOL occurred when he failed to report to the overseas transfer point for his assignment to Korea; he was absent for 34 days.  The applicant’s second period of AWOL occurred after he departed Korea on leave en route to Fort Bragg.  When his leave ended, he did not report to Fort Bragg and was AWOL for 97 days.

3.  Court-martial charges were preferred against him and the applicant was facing a possible bad conduct or dishonorable discharge.  His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received. 

4.  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.

5.  The applicant’s contention that family problems contributed to his misconduct is noted; however, Soldiers know that the Army offers many resources to help resolve personal problems and that running away (AWOL) is not one of them.  There is no evidence the applicant ever attempted to avail himself of any of the support functions offered by the Army at the time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  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)                                         AR20080011258



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ABCMR Record of Proceedings (cont)                                         AR20080011258



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