IN THE CASE OF:	

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090019118 


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 an honorable discharge.

2.  The applicant states the following:

* His family was returning to Fort Benning, GA
* He had a serious car accident on 15 April 1984 and lost a son
* He was scheduled to work at 0600 hours on 16 April 1984
* He was mentally and emotionally disturbed after the car accident 
* He did not receive any counseling on this tragic misfortune
* He could not function properly
* Before the accident he received the Army Achievement Medal, letters of various sort, rank of sergeant (SGT)/E-5, and was an NBC [Nuclear, Biological, Chemical] instructor as a specialist four (SP4)/E-4
* He loved the military; it was his dream
* If the military would take him, he would rejoin

3.  The applicant provides the following documents in support of his application:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter from Community Mental Health Center, Enterprise, AL
* Standard Form (SF) 558 (Emergency Care and Treatment)
* SF 600 (Chronological Record of Medical Care)


* Alabama Uniform Traffic Accident Report
* Promotion orders to sergeant
* Certificate of Completion of the NBC Defense Officer/NCO [Noncommissioned Officer] Course
* Certificate for award of the Army Achievement Medal
* Orders for award of the Army Achievement Medal
* Certificate of Achievement
* Certificate of Promotion to specialist four
* 21st Support Command Oath of Enlistment
* Diploma from One Station Unit Training Course

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 in the Regular Army on 27 July 1979.  He completed one station unit training at Fort McClellan, AL and he was awarded military occupational specialty 95C (correctional specialist).  He was promoted to sergeant on 1 April 1983.  After he completed a tour in Germany, he was assigned to Fort Benning.

3.  The applicant was awarded the Army Achievement Medal on 25 July 1983 for meritorious service in Germany.

4.  The applicant’s Alabama Uniform Traffic Accident Report shows he was involved in a car accident on 15 April 1984 resulting in one individual being killed.

5.  On three separate occasions between June 1984 and October 1984, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for the following offenses:

* Failing to go at the time prescribed to appointed place of duty
(2 specifications)
* Assaulting a sergeant by striking him with his closed fist
* Wrongfully communicating a threat to a sergeant
* Leaving his appointed place of duty
* Drunk and disorderly conduct
* Disrespectful in language toward a sergeant first class
* Failing to obey a lawful order

6.  The applicant received a letter of reprimand for assault and communicating a threat to another Soldier.

7.  The applicant’s service record contains a DA Form 4384-R (Commander’s Report of Inquiry/Unauthorized Absence) which shows the company commander marked the following items in Block 7 (Possible Contributing Factors Causing AWOL):

* Marital strife
* Indebtedness
* Trouble with superiors

8.  In Block 9 (Record of Any Evidence of the Following) of the DA Form 4384-R, the company commander remarked “SM stated he would not return and he took his family from qtrs [quarters] late at night.  SM was recently reduced from E-5 to E-4.  Also mental instability - SM [Service member] has been treated for depression.”  The commander marked the following items:

* Mental instability
* Intent not to return
* Evidence of shirking important/hazardous duty 

9.  Charges were preferred against the applicant on 24 October 1984 for being absent without leave (AWOL) from 10 September 1984 through 18 October 1984.

10.  The applicant consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and
that he might be ineligible for many or all Army benefits administered by the 
Veterans Administration if an under other than honorable conditions discharge was issued.  He did not submit statements in his own behalf.

11.  The applicant’s SF 558 shows he was treated for hostile and combative behavior on 21 October 1984.  

12.  The company commander indicated the applicant was interviewed on 24 October 1984 and the applicant stated the following:

	a.  He departed AWOL from Fort Benning for approximately 38 days because he felt mistreated by the military.

	b.  His wife had been released from the hospital at Fort Benning but because of her weakened condition she needed his attention and assistance.

	c.  He requested a weekend pass to be with his wife but his unit denied his request, so he departed AWOL.

	d.  He surrendered to military authorities at Fort Bragg and wanted to be discharged from the U.S. Army.

13.  The separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

14.  The applicant was accordingly discharged on 15 January 1985 under the provisions of Army Regulation 635-200, chapter 10.  He completed 5 years,
4 months, and 11 days of active military service with 38 days of time lost due to being AWOL.

15.  In a 6 January 1992 letter provided by the applicant, the Court Referral Officer of the Community Mental Health Center informed the applicant he was in non-compliance with the Intensive Outpatient Court Referral Program.  The Court Referral Officer requested the applicant go to his office to discuss an alternative treatment method.  Failure to do so will result in his case being returned to court.

16.  On 9 July 1997, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

17.  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.

18.  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.

19.  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 statements regarding his personal family problems were acknowledged.  However, the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct (AWOL) which led to his discharge.  While the Board is empathetic, the applicant's personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial was administratively correct and in conformance with applicable regulations.  No evidence of record indicates the request was made under coercion or duress.

3.  The applicant's record of service shows he received three Article 15s and he was charged for being AWOL for 38 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either an honorable or a general under honorable conditions discharge.

4.  The evidence of record does not indicate the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's requested relief.



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)                                         AR20090019118



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ABCMR Record of Proceedings (cont)                                         AR20090019118



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