IN THE CASE OF:	  

		BOARD DATE:	  11 June 2009

		DOCKET NUMBER:  AR20090001619 


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

2.  The applicant states, in effect, that he went absent without leave (AWOL) because of family hardships.  His son was born with some medical complications and he himself was suffering from gastrointestinal problems.  He was AWOL for 66 days and then turned himself in at Fort Bragg, North Carolina where he was stationed.   He feels that he should be granted an upgrade of his discharge due to his having to deal with a family emergency at the time and because of his own personal medical problems.  

3.  The applicant provides, in support of his application, 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.  On 30 October 1990, the applicant enlisted in the Regular Army (RA) for
4 years.  He completed his initial training and was awarded military occupational specialty (MOS) 31D (Multichannel Transmission System Operator).

3.  On or about 26 April 1991, the applicant successfully completed the Basic Airborne Course and was awarded the Parachutist Badge.  He was subsequently assigned for duty at Fort Bragg, North Carolina.

4.  On 30 October 1991, the applicant was advanced to the rank/grade of private first class (PFC)/E-3.

5.  On 16 October 1992, the applicant went AWOL.  He surrendered to military authorities at Fort Bragg on 12 January 1993.

6.  A copy of any charges that may have been preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, are not contained in the available records.

7.  On 15 January 1993, the applicant signed a statement, wherein he admitted to being AWOL from 16 October 1992 to 12 January 1993.  He further stated that his counsel had advised him that the government did not have the necessary documentation/records with which to obtain a conviction by a court-martial due to the time required to request and mail the documents and records.  He was advised by his counsel that without these records his counsel was limited by the few available records as to the advice he could receive.  Nevertheless, the applicant, knowing all of this to be true, waived all defenses that may have become known had his defense counsel been able to review his records.  The applicant further declared that his military counsel had explained to him all of the legal and social ramifications of receiving an under other than honorable conditions discharge and what it would mean to him in the future.

8.  The discharge packet is not contained in his military records.  However, his DD Form 214 shows that he was discharged on 22 March 1993, under the provisions of Army Regulation 600-200, chapter 10, for the good of the service, in lieu of court-martial.  His service was characterized as under other than honorable conditions.  He had completed 2 years, 1 month, and 27 days of creditable active duty and he had 88 days of lost time due to AWOL.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 trail by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.

11.   Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

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 (emphasis added), 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.  The applicant contends that his discharge should be upgraded based on his family emergency at the time and because of his own personal medical problems.

2.  The applicant's record is void of the facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 
635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The 
applicant is presumed to have voluntarily, willingly, and in writing, requested 
discharge from the Army in lieu of trial by court-martial.  It is also presumed that 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.  There is no available evidence showing that the applicant had any mitigating circumstances or that his AWOL was a reasonable solution to them. 

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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

6.  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)                                         AR20090001619



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ABCMR Record of Proceedings (cont)                                         AR20090001619


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