IN THE CASE OF:	

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080012358 


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 an upgrade of his discharge from under other than honorable conditions discharge to an honorable. 

2.  The applicant states that he was discharged in lieu of a court-martial after a period of absence without leave (AWOL) and that the act of discharging him is considered a willful and persistent misconduct by the service department. 

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  an undated self-authored letter; 

	b.  an extract of a Little Rock, Arkansas local newspaper, dated 11 November 1989, regarding a murder;

	c.  his Arkansas Criminal History Report, dated 9 May 2008; and

	d.  two character witness statements, dated 6 May 2008.

4.  Additionally, on 29 July 2008, the applicant submitted a copy of his Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 4 June 2008, 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 records show that he enlisted in the Regular Army for a period of 4 years on 22 September 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76V (Materiel Storage and Handling Specialist).  The highest rank/grade the applicant attained during his military service was specialist (SPC)/E-4.

3.  The applicant's records further show he served a one-year tour in Korea.  His awards and decorations include the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any special accomplishments, significant acts, or achievements during his military service.

4.  On 24 September 1990, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on divers occasions between 23 August 1990 and 10 September 1990.  His punishment consisted of reduction to private first class (PFC)/E-3 (suspended until 23 March 1991), forfeiture of $208.00 pay (suspended until 23 March 1990), and 14 days of extra duty.

5.  On 4 February 1991, the applicant departed his unit in an AWOL status and was subsequently dropped from the rolls (DFR) of the Army on 7 March 1991.  He remained in a deserter status until he was apprehended by civil authorities in Little Rock, Arkansas, and was returned to military control on 5 June 1991. 

6.  On 10 June 1991, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 4 February 1991 until on or about 5 June 1991.  

7.  On 10 June 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations).

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, 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. 

9.  On 20 June 1991, the applicant's immediate commander remarked that the applicant had been disillusioned with the military and that his retention was not in the best interest of the Army.  He further recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge. 

10.  On 26 June 1991, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of
AR 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced the lowest enlisted grade.  On 8 July 1991, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 2 years, 5 month, and
5 days of creditable active military service and had 122 days of lost time due to AWOL.

11.  On 12 April 1996, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge. 



12.  In his undated self-authored letter, the applicant states that misconduct was a result of mental stress due to family hardship and emergency.  He then goes on to state that, with help from the American Red Cross, he went home after his brother was brutally shot.  However, the trauma of seeing his mortally wounded brother severely affected him, and that this traumatic incident proves his insanity existed at the time of his commission of the offense that ultimately led to his discharge.  Furthermore, prior to this one incident, his record was faithful, honorable, and beneficial to the nation.  He also argues that his 121 days of AWOL does not exceed the 180 day minimum limit cited in Title 38, U.S. Code and then goes on to give specific examples of other individuals whose discharges were upgraded despite their AWOL time.  He concludes that based on his insanity, good military record, lack of counsel, and his inability to fully understand the consequences of his actions, he should be granted an upgrade.

13.  The applicant submitted a copy of a newspaper article, dated 11 November 1989, that describes the brutal murder of his brother and another individual, in Little Rock, Arkansas.

14.  The applicant submitted a copy of his electronic criminal history report from an Internet site.  This report shows that the applicant has a history of convictions for forgery and possession of a controlled substance.

15.  The applicant submitted a two character reference letters as follows:

	a.  in her letter, dated 6 May 2008, the applicant’s neighbor comments on the applicant’s politeness and courtesy, as well as the impact of his brother’s murder on him and the entire family; and

	b.  in her letter, dated 6 May 2008, one of the applicant’s friends comments on his manners and politeness.

16.  The applicant submitted a copy of his statement, dated 4 June 2008, in support of his VA claim, contending that his insanity led to his misconduct and subsequent other than honorable discharge and that he should be entitled to a discharge upgrade and VA medical benefits.

17.  AR 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.

18.  AR 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

19.  AR 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 contends that his discharge should be upgraded.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The brutal death of the applicant’s brother at the time is noted.  However, there is no evidence in the available record and the applicant did not provide any substantiating evidence that shows this incident or any other family problems caused him to be AWOL for a 122 days.  Even if he encountered severe family problems, he had many legitimate avenues, through which he could have received assistance or relief, had he chose to use them.

4.  Contrary to the applicant’s contention that this was a single, isolated incident caused by the trauma of the loss of his brother, his record shows that on 24 September 1990, he accepted nonjudicial punishment under the provisions of 
Article15 of the UCMJ for multiple instances of failing to go to his appointed place of duty.  Furthermore, contrary to the applicant’s contention that he had no right to a counsel, the evidence of record shows that prior to making his request for 
discharge of his own free will, he was afforded the opportunity to counsel who advised him of the facts, as well as his rights and options.  The decision to voluntarily request discharge was the applicant's own. 

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

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.



      _________X_____________
               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)                                         AR20080012358



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ABCMR Record of Proceedings (cont)                                         AR20080012358



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