IN THE CASE OF:	  

		BOARD DATE:	3 December 2009

		DOCKET NUMBER:  AR20090010293 


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 (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states that when he returned from physical training one morning, he saw his first sergeant (1SG) leaving his quarters.  When he asked his 1SG what was going on, he was told that he did not want to know and that he had better leave the situation alone.  He bottled up his emotions concerning the event but he became tense, distraught and depressed.  He attempted to tell his chain of command what had occurred but his story fell on deaf ears.  He finally gave up and went absent without leave (AWOL).  When he turned himself in, no one asked him why he had gone AWOL.

3.  The applicant provides a copy of his military records.

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 that he enlisted in the Regular Army on 10 January 1978 with no prior service, was awarded the military occupational specialty of armor crewman, and was promoted to pay grade E-4.

3.  The applicant was not favorably considered for the Army Good Conduct Medal on 9 January 1981.

4.  On 6 March 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for disobeying a lawful order to not get drunk while the company spent the night out in the field.

5.  On 19 June 1986, court-martial charges were preferred against the applicant for being AWOL from 21 March to 10 June 1986.

6.  On 19 June 1986, the applicant requested discharge in lieu of court-martial for the good of the service.  In that request the applicant acknowledged that he could be discharged UOTHC.

7.  The applicant's commander endorsed his request stating that he interviewed the applicant and the applicant stated that he was having marital problems and he felt that he needed to be with his wife more in order to save his marriage.

8.  The applicant's request was approved by the appropriate authority.  Accordingly, on 23 July 1986 the applicant was discharged UOTHC.

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.

10.  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.

11.  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.  While the applicant stated that he went AWOL because of marital problems, he did not say anything to his commander about his 1SG's behavior.

2.  It would appear reasonable that when the applicant told his commander he was having marital problems he would have mentioned what was causing those problems if it involved a military authority figure.

3.  The Army has a full array of services to help Soldiers who are having marital difficulties.  There is no evidence that the applicant sought such services.

4.  Going AWOL is never an acceptable answer to a problem.

5.  The applicant's lengthy period of AWOL certainly warranted a discharge UOTHC and the applicant has not submitted any evidence or argument which would warrant upgrading a properly issued discharge.

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)                                         AR20090010293





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ABCMR Record of Proceedings (cont)                                         AR20090010293



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