IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090015288 


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

2.  The applicant states, in effect, that he was young at the time and was going through a troubled marriage.  His spouse was dealing with an addiction problem and abusive.  His son was born premature and died after 5 1/2 months due to medical problems.  He returned to his unit after his son's death.  His record was exemplary leading up to the time that his personal life fell apart.  This would indicate that there was something going on other than a personality issue or attitude problem. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 27 November 1984; and a copy of his son's obituary, dated 14 October 1984, 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 records show he was born on 3 August 1963 and enlisted in the Regular Army at age 19 for a period of 3 years on 13 January 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty 75E (Personnel Actions Specialist).  The highest grade the applicant attained during his period of military service was E-4.

3.  The applicant’s records also show he was awarded the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Army Achievement Medal.

4.  On 1 September 1983, the applicant departed his unit at Fort Bragg, NC, in an absent without leave (AWOL) status and he surrendered to military authorities at Fort Bragg and returned to his unit on 17 October 1983.

5.  On 20 October 1983, he again departed his unit in an AWOL status and was dropped from the Army rolls on the same date.  He again surrendered to military authorities at Fort Bragg, on 9 October 1984.

6.  On 10 October 1984, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 20 October 1983 through on or about 9 October 1984. 

7.  On 10 October 1984, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the uniform code of military justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge the applicant indicated that he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person. He also acknowledged that he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also submitted elected not to submit a statement in his own behalf.

9.  On 11 October 1984, the applicant again departed his unit in an AWOL status; however, he returned on 12 October 1984.

10.  On 22 October 1984, the applicant's immediate commander stated that he interviewed the applicant on 10 October 1984 and that he desired elimination from the service.  The applicant acknowledged that he departed AWOL due to marital difficulties and that his spouse caused him emotional instability and that her harassment, both at home and while on duty, resulted in him departing AWOL.  The immediate commander further recommended approval of the discharge with the issuance of an under other than honorable conditions character of service.

11.  On an unknown date in 1984, the applicant's senior commander also recommended approval with the issuance of a discharge under other than honorable conditions.

12.  On 6 November 1984, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be issued a discharge under other than honorable conditions and reduced to the lowest enlisted grade.  On 27 November 1984, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with service characterized under other than honorable conditions. This form further confirms he completed 1 year, 9 months, and 9 days of creditable active military service and he had 401 days of lost time.

13.  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.

14.  The applicant submitted a copy of his son's obituary that shows his son was born on 1 May 1984 and died on 14 October 1984. 

15.  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.

16.  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.

17.  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 discharge under other than honorable conditions should be upgraded to a general discharge.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  With respect to the applicant's arguments:

	a.  The evidence of record shows, at age 19, the applicant enlisted in the Regular Army and was over 20 years of age at the time he went AWOL. Therefore, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  

	b.  The applicant's marital issues and the unfortunate death of his son were considered.  However, there is no evidence that the applicant brought these issues to the attention of his chain of command or that he used any other support channels.  According to the available evidence the applicant's pattern of going AWOL started prior to the birth of his son.

4.  Additionally, his overall service record does not show an exemplary record.  On the contrary, it shows three instances of AWOL, one of which was nearly a whole year.  

5.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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)                                         AR20090015288



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090015288



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1