IN THE CASE OF: 

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090018788 


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 his 1981 discharge under other than honorable conditions be upgraded to a general under honorable conditions discharge.

2.  The applicant states he witnessed his partner shoot himself while assigned to Fort Hood and was subsequently transferred to Germany for an unaccompanied tour.  He states these two events resulted in his irrational thinking and decision to go AWOL (absent without leave).  He states he performed well until the suicide of his partner and believes today he would have received counseling from the military.  He admits going AWOL was the wrong choice and that he ultimately voluntarily returned to military control in Massachusetts.

3.  The applicant provides an undated statement from the Massachusetts Department of Veterans Affairs indicating he is enrolled in the Health Care for Homeless Veterans Program.  He also submits a copy of his 1981 DD Form 214 (Certificate or 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.  The applicant enlisted and entered active duty as a Regular Army Soldier on 30 June 1978.  He was 18 years old at the time.  In October 1978, following completion of training as a military policeman, he was assigned to a military police unit at Fort Hood, Texas.  In January 1979 he received a letter of appreciation for volunteering to serve a dual shift and in May 1979 he was advanced to pay grade E-3.

3.  In January 1980 he was reassigned to a military police company in Germany.  His DA Form 2 (Personnel Qualification Record) notes he was married at the time.

4.  On 31 March 1980 the applicant departed AWOL and was subsequently dropped from the roles of the Army.  On 26 August 1981 he voluntarily returned to military control at Fort Devens, Massachusetts.  

5.  He underwent a mental status evaluation on 28 August 1981.  The evaluating official noted the applicant was AWOL due to family problems and found:

* His behavior was normal
* He was fully alert and oriented
* His mood was unremarkable
* His thought process was clear and normal
* He was mentally responsible and had the mental capacity to understand and participation in separation proceedings.

6.  On 2 September 1981 the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of being tried by court-martial.  He acknowledged he understood he could receive an undesirable discharge as a result.  He also indicated he understood such a discharge could result in the denial of veteran benefits under State and Federal laws.  In a statement submitted on his own behalf the applicant indicated he had witnessed the suicide of his partner at Fort Hood and could not deal with the separation from his spouse after being assigned to Germany.  He asked for a discharge which was better than other than honorable.



7.  The appropriate authority approved the applicant’s request and on 2 October 1981 he was discharged.  His service was characterized as under other than honorable conditions.  He completed approximately 22 months of creditable service but had more than 500 days of lost time due to AWOL.

8.  The FSM's record doesn't contain any evidence he applied to the Army Discharge Review Board to have his discharge upgraded.

9.  References:

a. Army Regulation 635-200 sets forth the basic authority for 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, 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 is normally considered appropriate.

b. 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 discharge under other than honorable conditions was appropriate considering the basis for the separation.  His records show he requested discharge for the good of the service in lieu of trial by court-martial.  There is no evidence indicating his separation was not accomplished in compliance with regulatory guidance and no indication of any procedural errors that would have jeopardized his rights.

2.  The applicant articulated the reason he was AWOL to the separation authority but provided no evidence he ever sought help with his situation prior to deciding to go AWOL.  The applicant’s performance prior to his AWOL only serves as evidence the applicant was able to perform honorably but does not serve as a basis to justify the upgrading of his properly imposed discharge.



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 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)                                         AR20090018788





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ABCMR Record of Proceedings (cont)                                         AR20090018788



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