BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090009346 


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 upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that at the time of his discharge he was experiencing family problems and as such he was depressed.  He states his marriage was breaking up, he was unable to see his daughter because his wife had full custody, and his sister was hospitalized for a bi-polar disorder.  He states that because of these pressures he ended up using drug and he was afraid he would get into trouble, so he decided to go AWOL (absent without leave).  He states he knows he should have sought counseling but noted that “unfortunately, the military was ill-equipped to handle these types of problems.”  He states that he served three solid years in the military and states the incident happened more than 20 years ago.

3.  The applicant provides, in support of his application, letters of support from the Salvation Army Center of Hope and from the Veteran’s Resource Counselor at Francis House located in Sacramento, CA.

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.  Records available to the Board indicate the applicant enlisted in the Regular Army (RA) and entered active duty on 30 March 1984 after 2 months and
14 days in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP).  At the time of his enlistment, according to documents which authorized the applicant’s spouse and daughter military ID (identification) cards, his spouse and daughter were residing in Chicago, IL.

3.  Following successful completion of training, the applicant was assigned to Fort Ord, CA.  By October 1985 he had been advanced to the rank/grade of specialist (SPC)/E-4.

4.  On 5 March 1987 the applicant was reported as AWOL.  He was dropped from the rolls (DFR) of the Army on 4 April 1987.  On 18 May 1987 he surrendered to military authorities at an air force base in Sacramento and he was subsequently returned to Fort Ord.  A record of conversation between the applicant’s unit first sergeant and an official at the Fort Ord Personnel Confinement Facility (PCF) notes that the applicant tested positive on a urinalysis test and he was punished under article 15 of the UCMJ (Uniform Code of Military Justice).  A copy of that record of NJP (nonjudicial punishment) is not in the applicant’s file.  The record of conversation went on to say that the applicant underwent a second urinalysis shortly before going on leave, which also came back positive, but the applicant never returned from leave.  The conversation record did note the applicant was not a disciplinary problem in the unit.

5.  A DD Form 93 (Record of Emergency Data), authenticated by the applicant on 21 May 1987, indicated that his spouse and child were still residing at the same address in Chicago that they were residing at when their initial ID cards were issued in 1984.

6.  A DD Form 458 (Charge Sheet), dated 29 May 1987, shows the applicant was charged with being AWOL from 5 March to 18 May 1987.  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 lieu of trial by court-martial).  In doing so, he 

acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable 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 Veteran Administration (VA).  He elected not to submit a statement in his own behalf and he was placed in a voluntary excess leave status effective 29 May 1987, pending final disposition of his request for discharge.

7.  On 10 September 1987 the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued. 

8.  The applicant was accordingly discharged on 6 October 1987 under the provisions of Army Regulation 635-200, chapter 10 with an under other than honorable conditions discharge.  He was credited with completing 3 years,
4 months, and 4 days of total active service.

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

10.  The statement from the Salvation Army Center of Hope submitted in support of the applicant’s petition to upgrade the character of his discharge noted the applicant came to the center with low self-esteem and a wounded spirit.  The author indicated the applicant was “showing a genuine Christian concern for his country, his community and for himself.”  The author stated the applicant needed his discharge upgraded so he could move forward in his life with all the benefits he deserved.

11.  The second statement submitted in support of the applicant’s request indicated the applicant was a homeless veteran who would like his discharge amended.  The statement noted that “we all make a regretful choice at least once in our lives” and that the choice the applicant made “was stress driven from the collapse of his entire family.”  The author noted these events happened over 20 years ago and indicated the applicant did serve 3 solid years with the Army before being discharged and that it should not be the intention to make someone suffer their entire life over a mistake made so long ago.

12.  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.

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's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and he acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and there is no indication of procedural errors that would have jeopardized his rights.

2.  While the applicant argues that pressures of his family situation caused him to use drugs and that he was worried about the consequence and as such decided to go AWOL are not supported by any evidence available to the Board or provided by the applicant.  Even with such evidence, the applicant’s actions were such that separation was appropriate and not so mitigating as to warrant the relief requested.  Contrary to the applicant’s contention that the Army was not equipped to deal with problems of his kind, there would have been numerous avenues available to the applicant via his chain of command, medical, legal, and or counseling offices which could have helped him cope with his situation.  It is noted that the applicant did not raise any of these issues when given the opportunity to do so as part of his separation processing.

3.  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.

4.  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)                                         AR20090009346



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ABCMR Record of Proceedings (cont)                                         AR20090009346



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