BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090019127 


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 1990 discharge under other than honorable conditions be upgraded.

2.  The applicant states at the time he was reported absent without leave (AWOL) he was actually taking care of his fiancé and two children because his fiancé underwent emergency surgery and there was no one else to take care of the children.  He states he told his commander about his situation but because he was not married his request for leave and a pass were denied.  

3.  The applicant notes he has now been married 17 years and his children are grown.  He maintains the reason for his actions was honorable and the punishment he received was too severe.  He states it has affected his entire life.  He states his punishment focuses on only one error in judgment versus all of his prior dedicated and loyal service.

4.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant enlisted in the Regular Army for a period of 4 years on 29 April 1986.  His enlistment documents do not indicate he was married or had any children at the time.  

3.  The applicant successfully completed training and in September 1986 was assigned to Fort Bliss, Texas.  In October 1987 he was promoted to pay grade 
E-4.  In December 1987 the applicant was reassigned to Germany.

4.  The applicant’s records note he completed numerous correspondence courses to include the Primary Leadership Development Course.  He had also received the following awards and/or decorations:

* Five Certificates of Achievements
* Two awards of the Army Achievement Medal
* Army Good Conduct Medal
* Mechanics Badge

5.  In December 1989, while still in Germany, the applicant completed and signed a DD Form 93 (Record of Emergency Data) indicating he had a spouse (Blanca) but designating his fiancé (Pamela) as beneficiary for his unpaid pay and allowances in the event of his death or if missing.  The form did not indicate he had any children.

6.  In January 1990, the applicant departed Germany and by March 1990 he had reported to Fort Jackson, South Carolina to commence training as a heavy wheel vehicle mechanic in accordance with his September 1989 reenlistment contract.

7.  On 8 May 1990, the applicant was reported in an AWOL status and on 8 June 1990 he was dropped from the rolls of the Army.  He returned to military control on 19 June 1990.

8.  Documents associated with the applicant’s administrative separation were not available to the review.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) notes he was discharged under other than honorable conditions on 17 July 1990 under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial.

9.  References:
   
   a.  Army Regulation 635-200 (Enlisted Separations) set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  At that time, an under other than honorable conditions discharge was normally considered appropriate.

   b.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

   c.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  His argument that his absence was somehow justified is not supported by any evidence in his record or provided by him.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant’s argument that his service was good up until his discharge has been noted.  Such service is evidence the applicant was capable of honorable service and his subsequent misconduct diminished the quality of his service below that meriting a fully honorable or a general discharge.  

3.  In the absence of evidence to the contrary it is presumed the applicant's administrative separation was accomplished in compliance with applicable regulatory guidance.




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)                                         AR20090019127



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ABCMR Record of Proceedings (cont)                                         AR20090019127



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