IN THE CASE OF:	

		BOARD DATE:	14 July 2009  

		DOCKET NUMBER:  AR20090003465


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 under other than honorable conditions (UOTHC) be upgraded to a general or honorable discharge.

2.  The applicant states he served in the Army from July 1986 to April 1989.

	a.  Following completion of his initial entry training, he completed the Basic Airborne Course and the Ranger Indoctrination Program.  He was then assigned the 2d Battalion, 75th Ranger Regiment, at Fort Lewis, WA.

	b.  He moved his wife and children to the Fort Lewis area and rented an off-post apartment for them.  He saw little of his family due to training and deployments.

	c.  In August 1988, he received a slot to attend the 8-week Ranger Course at Fort Benning, GA.  During the last week of training, his wife wrote him to say she was taking the children and going back home to Michigan where she would file for divorce.  The applicant was given permission to leave the field to speak with his wife by telephone.  By telephone, his wife stated she would only remain at Fort Lewis if he transferred from the Ranger regiment to a regular unit.  He agreed and requested disenrollment from the Ranger Course and transfer from the Ranger regiment.

	d.  He was reassigned to the 1st Battalion, 84th Field Artillery, at Fort Lewis.  The unit was not as disciplined as the Rangers and he had a difficult time adjusting.  Around Christmas of 1988, his wife and children were evicted for non-payment of the rent; they ended up living out of their car.  He sought help from the first sergeant, company commander, installation housing office, and Army Emergency Relief, but no one would help.

	e.  In desperation, he told his company commander he was going to take his family home to Michigan, get them settled in a place to live, get the children enrolled in school, and get some money for necessities.  When his family was taken care of, he would return to his unit.  His commander informed him he would be considered absent without leave (AWOL) and would be court-martialed.  He departed for Michigan without permission on 19 December 1988.

	f.  He was AWOL for 7 weeks and voluntarily returned to military control and was transferred to Fort Knox, KY, where he accepted a chapter 10 discharge.

3.  The applicant states it has been 19 years since his discharge and he has had to live with his foolish decisions all these years.  He had an impeccable record with the Rangers and was within 1 week of earning his Ranger Tab.  He is very proud of that part of his service, but ashamed of his final months.  He states if only he had received help from his chain of command, he could have completed his service in an honorable fashion.  He adds he has never been in trouble since his discharge and hopes the Board will take everything into consideration and upgrade his discharge.

4.  The applicant provides:

	a.  basic and advanced individual training certificates,

	b.  a Certificate of Signal Corps Regimental Affiliation,

	c.  a basic airborne course completion certificate,

	d.  a 2d Ranger Battalion Certificate of Achievement,

	e.  a State of Michigan General Educational Development High School Certificate,

	f.  a certificate for beating the Fort Gordon Commanding General’s time in a 2-mile run,

	g.  his DD Form 214 (Certificate of Release or Discharge from Active Duty),

	h.  a copy his discharge orders,

	i.  a copy of his DA Form 2-1 (Personnel Qualification Record), and

	j.  a copy of his discharge packet.

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 22 July 1986 at 26 years of age.  His enlistment contract shows that he was divorced since 1982 and was providing child support for one child.

3.  The applicant’s record shows he completed all initial entry training and was awarded military occupational specialty 31C (Radio Operator).  Following completion of the basic airborne course and the Ranger Indoctrination Program, he was transferred to Fort Lewis and assigned to Company A, 2d Battalion, 75th Ranger Regiment.

4.  The applicant’s record shows he was reassigned from the Ranger regiment to Headquarters and Headquarters Battery, 1st Battalion, 84th Field Artillery, on 21 October 1988.  He departed that unit in an AWOL status on 19 December 1988.

5.  The applicant returned to military control at Fort Knox on 15 February 1989.  Court-martial charges were preferred against him for 58 days of AWOL.  On 22 February 1989, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  He stated that he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge and that he did not desire further rehabilitation nor had he any desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He submitted a statement that is essentially the same as the one he submitted to this Board.  However, a review of his DA Form 201 (Military Personnel Records Jacket) does not show that he applied for any identification cards for a spouse or child(ren).

6.  The applicant’s request for discharge was processed through command channels and approved on 10 March 1989.  The approving authority directed a UOTHC discharge be issued.

7.  The applicant was discharged UOTHC on 20 April 1989.  He had completed 2 years, 7 months, and 3 days of creditable service and had 58 days of lost time due to AWOL.  During his service, he had no record of nonjudicial punishment under Article 15, Uniform Code of Military Justice.

8.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 
15-year statute of limitations.

9.  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 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.

	a.  Regarding an honorable discharge, 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.

   b.  Regarding a general discharge, 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 requests an upgrade of his UOTHC discharge to general or honorable.

2.  The applicant contends marital and family problems led to his period of AWOL and his ultimate discharge from the Army.  His enlistment records indicate he was a 26-year old single (divorced) man paying support for one child.  Also, his DA Form 201 contains only his DA Form 438 (Application for Identification Card).

3.  It appears the applicant was considered single by the Army.  Certainly if he had remarried, there is no record or evidence to show he sought to obtain identification cards for his spouse and child(ren).  Without identification cards and registration of his dependents in the Defense Enrollment Eligibility Reporting System, he would not have been eligible for any support, such as housing.

4.  The applicant went AWOL for 58 days.  When he returned, he faced court-martial.  His 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 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, felony conviction, and the punitive discharge that he might have received.  At that time, he found a UOTHC discharge the more acceptable course of action.

6.  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 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)                                         AR20090003465



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ABCMR Record of Proceedings (cont)                                         AR20090003465



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