IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090021250 


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 or honorable discharge.

2.  The applicant states he was trying to make sure his children were being taken care of.  He states he received a call from his ex-wife saying she could not deal with their infant daughter and that if he didn't come and get her she would put her up for adoption.  He further states he had to make the hard choice, but it turned out well and he has 2 lovely granddaughters.  He was a good Soldier and took his job very seriously.  He would like to be eligible for Department of Veterans Affairs (VA) health benefits.

3.  The applicant provides the following evidence:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 January 1987;

	b.  Agreed Order issued by the Circuit Court of Roane County, WVA, dated 5 August 1987, awarding the applicant sole custody of his infant daughter;

	c.  Order issued by the same civil court, dated 9 September 1988, modifying the 5 August 1987 court order; and

	d.  Three character reference letters.


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 3 April 1984 for 3 years.  He completed basic and advanced individual training meeting the qualification standards for military occupational specialty 16R (Air Defense Artillery Short Rand Gunnery Crewman).   The highest rank/grade he held was specialist (SPC)/E-4.

3.  On 30 August 1984, the applicant was assigned to Battery A, 3rd Battalion, 4th Air Defense Artillery, and stationed at Fort Bragg, NC.  On 15 July 1986, his unit reported him as being absent without leave (AWOL), effective 4 July 1986.

4.  The applicant surrendered to military authorities at Fort Bragg on 8 December 1986.  Then he was transferred to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY on 9 December 1986.

5.  There are no disciplinary records available in the applicant's official military personnel file.

6.  On 10 December 1986, court-martial charges were preferred against the applicant for being AWOL from his unit on 4 July 1986 through 8 December 1986.

7.  On 11 December 1986, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant 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 trial by court-martial

8.  In his request for discharge the applicant indicated that he understood that if his discharge request were approved 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, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  The applicant requested and was granted voluntary excel leave pending final disposition of his discharge request.

10.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge and recommended issuance of an under other than honorable conditions discharge.  The immediate commander stated that based on the applicant's previous record, punishment would have a minimal rehabilitative effect.

11.  On 23 December 1986, the separation authority approved the applicant's request for discharge for the good of the service and directed that he be discharged with an under other than honorable conditions discharge.

12.  On 26 January 1987, the applicant was discharged accordingly.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged with an under other than honorable conditions discharge.  This form further confirms that he completed 2 years, 4 months, and 20 days of net active service with time lost from 4 July 1986 to 7 December 1986.  Additionally, he had 47 days of voluntary excess leave from 11 December 1986 to 26 January 1987.

13.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  As evidence to support his application, the applicant did provide two court orders showing he was awarded sole custody of his infant daughter on 5 August 1987.  Additionally, the applicant provided three character reference letters stating he was an upstanding member of society, a successful business owner, a carpenter, and a member of the Merchant Marine.


15.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offense chargeable under the UCMJ.  A punitive discharge is authorized for an AWOL offense of 30 days or more.

	b.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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.

	c.  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.

	d.  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.  Based on the evidence of record, it is possible that the applicant was AWOL because he had to care for his infant daughter after his ex-wife threatened to put their infant child up for adoption.  The applicant presented evidence to show that in August 1987 he was awarded sole custody of his daughter.

2.  However, if the applicant went AWOL to care for his child, there were and are other administrative remedies available to Soldiers who are faced with sole parenthood duties and responsibilities.  In this case the applicant chose one of the least favorable means which subsequently led to his voluntary discharge in lieu of court-martial.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of establishing eligibility for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA.

5.  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 that requirement; therefore, there is insufficient basis to upgrade the applicant's discharge to either an honorable or a general 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)                                         AR20090021250



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ABCMR Record of Proceedings (cont)                                         AR20090021250



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