IN THE CASE OF:	

		BOARD DATE:	  7 April 2009

		DOCKET NUMBER:  AR20080018477 


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 under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, he believes his discharge should be upgraded because he is trying to straighten out the things in his life for the better.  He enlisted for the years of 1980 to 1983 and was stationed in Germany during the Iran Hostage Crisis.  He also states, in effect, that while he was stationed at Fort Irwin, California, his soon to be wife was diagnosed with cancer and he went absent without leave (AWOL) and started using drugs.  He did not return for the rest of his term of service and later turned himself in to face his court-marital.  He received an under other than honorable conditions discharge and a hardship.  He regrets what he did at that time in his life, he was still very young, on drugs, and knew little of life.  He has kids and grand-kids to enjoy, has had a heart attack and underwent triple by-pass surgery, and is a diabetic.

3.  In support of his application, the applicant provides a letter and a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 

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 military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 22 February 1980.  On 31 March 1980, he was discharged from the DEP and enlisted in the Regular Army (RA) in pay grade E-1 on 1 April 1980 for 3 years.  On the date of his enlistment in the RA, the applicant was 19 years and 11 months of age.

3.  The applicant completed basic combat and advanced training and was awarded military occupational specialty (MOS) 19E (M48-M60A1/A3 Armor Crewman).  He served in Germany from 22 September 1980 to 29 March 1982.  He was promoted to rank of specialist four (SP4)/pay grade E-4 on 1 October 1981.

4.  The applicant was reported absent without leave (AWOL) on 11 July 1982 and returned to duty on 13 July 1982.  He was again reported AWOL on 19 July 1982 and returned to duty on 20 July 1982.  There is no record of punishment under Article 15, Uniform Code of Military Justice for these offenses of AWOL.

5.  The applicant was again reported AWOL on 16 August 1982 and dropped from the rolls of his organization on 26 August 1982.  He was returned to duty on 17 January 1983.

6.  On an unknown date, a DD Form 458 (Charge Sheet) was prepared by the applicant's unit of assignment at Fort Irwin, California.  The applicant was charged with four specifications of AWOL from 11 to 12 July 1982, 19 July 1982,
16 August 1982 to 25 August 1982, and 26 August 1982 to 16 January 1983.

7.  The applicant's records contain a letter, dated 15 February 1983, from the applicant's spouse's medical doctor.  The doctor advised a member of the U.S. Army Trial Defense Service, Fort Irwin, that the applicant's spouse was under his care for her pregnancy.  The letter also advised that her pregnancy was complicated by an abnormal pap smear.  A repeat smear indicated mild dysplasia which must be carefully watched during the pregnancy.  She would require therapy and a cone biopsy after the delivery.  If the dysplasia progressed, it would be necessary to perform a Cesarean section delivery, thus it would be beneficial to have her family with her.

8.  There is no evidence the applicant requested a hardship discharge or a compassionate reassignment during his period of service.

9.  On 22 February 1983, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10.  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate and, as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  He waived his rights and elected to submit a statement in his own behalf.

10.  In his statement, dated 22 February 1983, the applicant stated that he was AWOL because of what he perceived to be pressing personal family needs.  He recognized that it was wrong for him to be AWOL and his only purpose was to give personal attention to his problems at home.  His family needed him at home more than ever.  He had one small son and his wife was pregnant, due in April, and had been diagnosed as having cancer.  The cancer, though apparently not immediately life-threatening, could complicate her pregnancy, delivery, and her post-natal care.  She would not be able to work in the foreseeable future and would certainly need expensive, specialized medical treatment.  If he were tried and sentenced to substantial confinement and forfeitures, the result would be unjust punishment of his family for his own wrongdoing.  He believed that a Chapter 10 discharge would be in the best interest of the Army and his family.  What he did was short-sighted and stupid, but it was not done with an evil motive to avoid his responsibility.  In those circumstances, his release from active military service was the surest way to serve the needs of the Army, society, and his family.  

11.  On 25 February 1983, the applicant's unit commander recommended disapproval of the applicant's request.

12.  On 25 February 1983, the applicant's battalion commander recommended approval of the applicant's request.  

13.  On 25 February 1983, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued and that the applicant be reduced to the lowest enlisted grade under the provisions of paragraph 8-11, Army Regulation 600-200 (Enlisted Personnel Management System).

14.  The applicant was discharged on 2 March 1983, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of court-martial.  He was credited with 2 years, 11 months, and 2 days total active service and 157 days of lost time due to AWOL.

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

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  An under other than honorable conditions discharge was normally considered appropriate.  However, the separation authority could direct a general discharge certificate, if such was merited by the Soldier's overall record during the current enlistment.

17.  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 view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contention that his discharge should be upgraded has been considered.  However, the applicant was charged with four specifications of being AWOL for a total of 157 days of lost time.  Upon his return to military control, he voluntarily requested discharge in lieu of facing a court-martial.  The applicant also acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.

3.  The applicant’s contentions have been noted; however, based on the available evidence, there is no basis for the upgrade of his discharge.  He has submitted no evidence to substantiate his claim that he requested and was denied a hardship discharge or compassionate reassignment due to the health of his wife.  It appears that the applicant resorted to a lengthy period of AWOL during his second term as a means of addressing any problems he may have been having.  The evidence also shows he requested discharge in lieu of facing a court-martial, thereby waiving his opportunity to appear before a special court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly. 

4.  While his age was considered, there is no evidence the applicant's age impacted his ability to serve successfully.  There is no evidence the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

5.  Contrary to the applicant's contentions, he has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.

6.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general discharge.

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.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080018477



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ABCMR Record of Proceedings (cont)                                         AR20080018477


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