IN THE CASE OF:	  

		BOARD DATE:	  12 November 2008 

		DOCKET NUMBER:  AR20080014878 


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 characterized as under other than honorable conditions (UOTHC) be upgraded. 

2.  The applicant states, in effect, that due to the physical injuries and severe emotional stress of the Panama Operation he was constantly being harassed about "stress and pain."He got tired of the pressure. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of a newspaper article in support of his request.

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 he enlisted in the Regular Army on 26 April 1989.  He was trained as a Light Weapons Infantryman in military occupational specialty (MOS) 11B.  

3.  The applicant's records contain a copy of an award certificate which shows that he was awarded the Purple Heart for wounds received in action on 18 January 1990.

4.  The applicant was promoted to private first class (PFC/E-3) effective 26 April 1990.  

5.  Charges were preferred against the applicant on 27 June 1991 for being absent without leave (AWOL) from 30 September 1990 to 13 June 1991.

6.  Item 21 (Time Lost), of the applicant's DA Form 2-1 (Personnel Qualification Record-Part II) shows he was AWOL from 30 September 1990 through 12 June 1991. 

7.  On 28 June 1991, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he 
acknowledged that he could encounter substantial prejudice in civilian life and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (DVA) if an UOTHC discharge were issued.  He waived his rights and elected not to submit a statement in his own behalf.

8.  On 29 July 1991, the separation authority approved the applicant's request for discharge and directed that he be furnished an UOTHC discharge.  

9.  The applicant was discharged on 26 August 1991.  He had completed a total of 1 year, 7 months, and 18 days of net active service.

10.  The applicant provides a copy of an undated newspaper article that states he was wounded during the invasion of Panama and received a Purple Heart from General C____ V____, Chief of Staff of the Army (CSA), at a military hospital in San Antonio, Texas.  

11.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  



12.  Army Regulation 635-200 sets forth the basic authority for 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.

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.

14.  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.  Whenever there is doubt, it is to be resolved in favor of the individual

DISCUSSION AND CONCLUSIONS:

1.  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.  

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available.

3.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant claims, that due to physical injuries and severe emotional stress of the Panama Operation, he was constantly being harassed about "stress and pain" and he got tired of the pressure.  There is no evidence in the available records and he has provided none to show he sought assistance from his command or military authorities to have them intervene in his behalf, if he was being harassed, as he now alleges.  If it was the command that was causing the harassment, the applicant had resources that he could call upon and seek their assistance (i.e., IG, Chaplain, Mental Health Care providers, etc.) in eliminating the harassment.  He did not have to resort to a lengthy absence without leave to resolve his problems.

5.  The Board considered the newspaper article presented by the applicant which indicates that he was wounded during the invasion of Panama and received a Purple Heart from the CSA at a military hospital in San Antonio; however, the article is not sufficient by itself to support an upgrade of his UOTHC discharge.

6.  There is no evidence in the applicant's records, and the applicant has provided none, to show that he applied for an upgrade of his discharge to the ADRB within its 15-year statute of limitations.

7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080014878



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014878



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1