IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100007367 


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 that his discharge characterized as under other than honorable conditions be upgraded to honorable.

2.  The applicant states he believes his record is unjust because he proudly and honorably served his country during the Gulf War.  He maintains he loved his military job, the Army, and his country.  The only thing he loved more was his wife whose infidelity crushed him while he was deployed.  The applicant explains that after returning from deployment he was determined to save his marriage even though his wife had moved from Fort Riley, Kansas to North Carolina.  He states he went absent without leave (AWOL) because he thought that being at home with her for more than a couple of days at a time was the only chance he had left to save his marriage.  Going AWOL was the biggest mistake that he has made in his life and he still lost his wife. 

3.  The applicant provides no additional documents 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 record shows he enlisted in the Regular Army on 24 February 1990.  He served 6 months in Saudi Arabia; however, the actual dates of his deployment are unknown.

3.  On 16 November 1992, charges were preferred against the applicant for being AWOL from 5 May 1992 to 9 November 1992.

4.  On 19 November 1992, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200.

5.  On 19 November 1992, the applicant signed his request for discharge which shows that he acknowledged that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he may be furnished an Under Conditions Other Than Honorable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Department of Veterans Affairs benefits, and that he may expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge.  The applicant elected not to submit a statement on his behalf.

6.  On 21 December 1992, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge characterization of service. 

7.  The applicant's DD Form 214 shows that on 15 January 1993 he was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 with a character of service of under other than honorable conditions.  The applicant had completed 2 years, 4 months, and 17 days of creditable service and he had a total of 187 days of time lost due to being AWOL.  

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  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, 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 the time, a discharge under other than honorable conditions was normally considered appropriate. 

10.  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.  

11.  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 argues, in effect, that his discharge is unjust because he proudly and honorably served his country during the Gulf War and he was experiencing difficulties with his wife's infidelity during his deployment.  The evidence shows the applicant served 6 months in Saudi Arabia.  There is no evidence and the applicant has not provided any to show that he was experiencing difficulties after his deployment and as a result of the situation he sought counseling and/or guidance to alleviate his problems.  Therefore, his contention that his discharge should be upgraded based on his successful service in the Gulf War and his subsequent situation which led to his AWOL is not sufficient as a basis for upgrading his discharge.

2.  Evidence of record shows the applicant’s voluntarily requested a discharge under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial and it was administratively correct, and in compliance with applicable regulations.  

3.  The applicant’s record of service included over 6 months of lost time.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20100007367



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ABCMR Record of Proceedings (cont)                                         AR20100007367



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