IN THE CASE OF:	  

		BOARD DATE: 19 November 2009

		DOCKET NUMBER:  AR20090011761 


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 or an honorable discharge.

2.  The applicant states he believes that the discharge he received was too harsh when compared to his good character of service during his first enlistment and his post-service conduct.

	a.  He states he served honorably in the Army from July 1983 to May 1987.  He reentered the Army on 25 February 1988.  He adds that while on a 3-day pass in Milwaukee, WI, on 19 June 1988, he was robbed, beaten in the head and face with a baseball bat, shot in the back, and left for dead.  He was later taken to the Milwaukee County Medical Complex.

   b.  He states that after he was released from the hospital he returned to his unit, but he was not the same person.  He also states that he brought his physical and mental condition to the attention of his superiors and medical officials, but he was ignored.
   
   c.  He states that his situation was not looked into by the Army and it led to him going absent without leave (AWOL) on 19 January 1989.  He adds that he was apprehended by the police on 11 July 1989 and he was returned to military control at Fort Knox, KY.


   d.  He concludes by stating that his mental state was not considered at the time of his discharge, even though the ordeal that led to him going AWOL occurred while he was on active duty.  He adds that the abuse of alcohol or drugs never came up during his first enlistment and his record of honorable service during that period shows his discharge should be upgraded.

3.  The applicant provides, in support of his application, a self-authored statement, a letter from his pastor, and his DD Forms 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.  A DD Form 214 shows the applicant enlisted and entered active duty in the Regular Army (RA) on 28 July 1983.  He was honorably released from active duty on 27 May 1987 and transferred to a U.S. Army Reserve (USAR) unit in Milwaukee, WI.  At the time of his release he had completed 3 years and
10 months of net active service.

3.  The applicant again enlisted in the RA for a period of 4 years on 25 February 1988.

4.  A DD Form 458 (Charge Sheet), dated 27 July 1989, shows the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, Kentucky, preferred charges against the applicant for being AWOL from his organization from 19 January to 11 July 1989.

5.  On 28 July 1989, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subject to coercion with respect to 
his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and state law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge; however, the document indicates that statements in his own behalf were not submitted with his request.

	a.  The applicant's separation packet shows that a captain in the U.S. Army, who was a member of the State Bar of Illinois, certified with his signature he had advised the applicant of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

   b.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with a character of service of under other than honorable conditions.

6.  On 15 August 1989, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  The separation authority also directed the applicant be reduced to the lowest enlisted grade and be discharged with an under other than honorable conditions discharge.

7.  The applicant's DD Form 214 shows he was discharged on 1 November 1989 in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, and his service characterized as under other than honorable conditions.  At the time he had completed 1 year, 2 months, and 15 days of net active service this period, and
3 years and 10 months of total prior active service.  Item 29 (Dates of Time Lost During This Period) shows the applicant had time lost from 19 January 1989 to 10 July 1989.

8.  On 21 February 1990, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting upgrade of his under other than honorable conditions discharge.  On 9 April 1991, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

9.  The applicant's military personnel records do not contain any evidence or reference to an incident that occurred on 19 June 1988 in Milwaukee, WI, or that the applicant was hospitalized at that time.  In addition, the applicant's application to the ADRB, dated 21 February 1990, makes no mention or reference to such an incident.

10.  In support of his application, the applicant provides a copy of a letter from his pastor, Reverend J__ C_____ R___, Jr., who states he has known the applicant since the time of his birth.  He states the applicant's family attended his church and the applicant was a very smart and respectful boy.  He also states that there was a change in the applicant when he returned home from the military, and that the applicant once told him that, "…while serving his country he was shot and left for dead."  He adds that the applicant has scars on his body that always remind him of the incident.  Reverend R___ concludes that the applicant is a good man, but suffers from physical and mental disorders and he is not the same intelligent boy who left for the military.

11.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

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 3-7a, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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 under other than honorable conditions discharge should be upgraded to either a general, under honorable conditions or an honorable discharge because the discharge he received was too harsh, he served honorably during his first enlistment, and the Army failed to consider the incident and his mental state that led to him going AWOL.

2.  The applicant's contentions were carefully considered.  It is noted that the applicant was issued a DD Form 214 documenting his honorable service during his initial period of enlistment in the RA from 28 July 1983 through 27 May 1987.

3.  The applicant contends he was the victim of a violent attack on 19 June 1988 that affected his physical and emotional state, which led to the actions that ultimately resulted in him submitting his request for discharge.  Records show the applicant requested a discharge for the good of the service in lieu of trial by court-martial and that he elected not to submit any statements in his own behalf when he submitted his request for discharge.  In addition, records fail show any evidence or reference to an incident that he states occurred on 19 June 1988 in Milwaukee, WI.  Moreover, shortly after his discharge, the applicant made no mention or reference to such an incident in his application to the ADRB.  Therefore, there is insufficient evidence to support the applicant's contention in this case.

4.  The applicant's 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 voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The offense that led to his discharge far outweighs his overall record of service during the period 25 February 1988 through 18 January 1989 (i.e., the date prior to the applicant's extended period of AWOL).  Therefore, considering all the facts of the case, the characterization of service directed was appropriate.

5.  The applicant's record of service prior to the offenses for which he requested discharge in lieu of trial by court-martial is noteworthy; however, it is insufficient as the basis for upgrading his discharge.

6.  The applicant's contentions that he has had good post-service conduct since his discharge was carefully considered; however, it is also insufficient as the basis for upgrading his discharge.

7.  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)                                         AR20090011761



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011761



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1