BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090007937 


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 an honorable discharge.

2.  The applicant states that he was going through a very bad divorce and custody battle and felt compelled to go absent without leave (AWOL) to obtain custody.  He also states that if he had been in his right mind, he would never have made such a disastrous decision as going AWOL.

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), copies of his DA Form 2-1 (Personnel Qualification Record – Part II), an FDPCF Form 617 (AWOL- Deserter Verification Sheet), a DD Form 458 (Charge Sheet), his statement submitted in his own behalf during the processing of his chapter 10 discharge, and his DD Forms 214 (Certificate of Release or Discharge from Active Duty) 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 military records show he enlisted in the Army Delayed Entry Program on 29 October 1977.  He enlisted in the Regular Army in pay grade E-1 on 8 November 1977 for 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 91C (Patient Care Specialist).  He was promoted to pay grade E-4 on 1 November 1979.

3.  On 18 June 1981, the applicant accepted punishment under Article 15, Uniform Code of Military Justice, for being AWOL from 20 May 1981 to 8 June 1981.  The punishment imposed was a reduction to pay grade E-3, a forfeiture of $150.00 pay for 2 months, and 7 days of extra duty.  He did not appeal the punishment.  He was reduced to pay grade E-3 on 18 June 1981.

4.  The applicant was reported AWOL on 11 January 1982 and dropped from the rolls of his organization on 11 February 1982.  He was returned to military control on 26 April 1982.

5.  On 27 April 1982, a DD Form 458 was prepared by the Commander, Company A, U.S. Army Personnel Control Facility, Fort Dix, New Jersey.  The applicant was charged with one specification of being AWOL from 11 January 1982 through 26 April 1982.

6.  An FDCF Form 691A, dated 27 April 1982, shows that during the applicant's pre-trial interview he stated that he went AWOL because of severe family problems; his wife disappeared with his children and he was unable to locate them.  He suffered a great trauma and was unable to work, eat, and sleep.  He also stated that he spoke with his platoon sergeant, first sergeant, company and battalion commanders, counselors, and company chaplain without results.  It was recommended the applicant be punished by a summary court-martial.

7.  On 30 April 1982, the applicant changed his mind for acceptance of trial by court-martial and requested separation from the service.

8.  On 30 April 1982, 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 Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an under other than honorable discharge; 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 Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.

9.  In an attached statement, the applicant stated that he was requesting a better than under other than honorable conditions discharge on the grounds that during his last year at Fort Devens, Massachusetts, he and his wife were subject to extreme trauma by his entire chain of command.  This resulted in his wife having a nervous breakdown, him being incarcerated seven times, causing the breakup of his family, and causing him to become emotionally traumatized which caused him to go AWOL.

10.  On 4 May 1982, the applicant's company commander recommended approval of the applicant's request and recommended the issuance of a discharge under other than honorable conditions.  The company commander stated that it was his opinion that the applicant had no motivation for continued service and would not respond to either counseling or rehabilitation.  The applicant was pending a trial for an offense punishable by a bad conduct discharge or dishonorable discharge.

11.  On 5 May 1982, the Commander, Headquarters and Headquarters Command, U.S. Army Training Center and Fort Dix, recommended approval of the applicant's request and recommended the issuance of a discharge under other than honorable conditions.

12.  On 26 May 1982, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a discharge under other than honorable conditions be issued to him and that the applicant be reduced to pay grade E-1.

13.  The applicant was discharged on 30 June 1982 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under other than honorable conditions.  He was credited with 4 years, 4 months, and 8 days of net active service and lost time from 11 January 1982 through 25 April 1982 due to AWOL.

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included 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.

16.  Army Regulation 635-200, paragraph 3-7a, of that regulation provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed 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.  Notwithstanding the applicant’s contentions that his family problems caused him to go AWOL, he has submitted no evidence to mitigate his offense or to show that he was denied any assistance with any problems he may have been having through his chain of command.  Even if he had a hardship, it was his responsibility to seek assistance through the Red Cross or various other organizations that were available to assist him.  It appears that the applicant resorted to AWOL as a means of addressing his problems.

3.  The evidence shows the applicant was punished under Article 15 for AWOL from 20 May 1981 through 8 June 1981 and reduced to pay grade E-3.  He was charged with one specification of AWOL from 11 January 1982 through 25 April 1982.  Upon his return to military control, he first elected to be tried by court-martial for his offense and later changed his mind and requested to be discharged in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly based on the reasons for his AWOL.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.

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

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

6.  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.

7.  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)                                         AR20090007937



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ABCMR Record of Proceedings (cont)                                         AR20090007937



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