IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100011386 


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 discharge.

2.  The applicant states he would like his discharge upgraded because at the time of his discharge he was dealing with mitigating circumstances.

3.  The applicant provides a 3-page self-authored statement.

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 12 March 1986.  He was trained in and awarded military occupational specialty (MOS) 31V (Tactical Communications Systems Operator/Mechanic).  After completing initial entry 


training, he was assigned for duty with Company E, 7th Engineer Battalion, Fort Polk, LA.  He reenlisted on 21 December 1988 for service in his overseas area of choice (Hawaii).  

3.  A DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) the applicant was absent without leave (AWOL) from 16 May through 8 June 1989 and from 10 June through 11 June 1989.  Item 21 shows he was imprisoned on 12 June 1989.  The record does not show the reason for his imprisonment.

4.  In an undated memorandum, the applicant voluntarily requested discharge for the good of the service 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.  The memorandum shows he was charged with two violations of Article 86 (AWOL) and one violation of Article 89 (disrespect toward a superior commissioned officer) of the Uniform Code of Military Justice (UCMJ).  The memorandum further shows that prior to submitting his request, the applicant consulted with legal counsel and he was advised of his rights under the UCMJ, the elements of the offenses with which he had been charged, and of the procedures and rights that were available to him.  The record does not include the applicant's signature on his voluntary request for discharge.  

5.  The applicant indicated that he understood by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense and he could be discharged with an under other than honorable conditions (UOTHC) discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He chose not to submit statements in his own behalf.

6.  On 22 June 1989, the separation authority approved the applicant's voluntary request for discharge.  He directed the applicant be discharged with a UOTHC discharge.  On 6 July 1989, the applicant was discharged accordingly.  He completed a total of 3 years, 2 months, and 23 days of total active service with 26 days of time lost.

7.  On 9 June 1993, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 6 October 1995, the board unanimously voted to deny his request.  On 11 December 1995, the final approval by the proper authority was made to deny the applicant's request.


8.  The applicant submitted the following statement:

I would like my discharge upgraded because at the time of my discharge, I was dealing with other mitigating circumstances.  Prior to my charge of AWOL my wife was raped by another serviceman in [Company E, 7th Engineer Battalion].  My AWOL was due in part to the rape that was committed by Private First Class (PFC) E---- D----- on my wife.  When the rape happened I tried unsuccessfully to bring it to the attention of my superiors.  My [chain of command] failed to do anything to help me, my wife, or [do] anything to deal with the situation.  They implied that my wife and PFC D----- [were] having an affair and the matter was quietly swept under the rug.  So when I went AWOL PFC D----- had threatened my wife and at the time [my unit] was going to the field [but] PFC D----- was being left behind.  My wife at the time was 6 or 7 months pregnant and I did not feel I could turn to anyone for help.

9.  He continues by stating the fact that he held a communications MOS in a close-knit unit comprised mostly of Soldiers in MOS 12C (Bridge Crewman) and his reenlistment for service in Hawaii played a role in the lack of help he received and the fact that he was not court-martialed "was geared to deny me the right to have my wife's pregnancy taken care of by the military."  He further states in December 1989 or January 1990, a representative of the military called him at his civilian job to ask if he was willing to bring his wife back to Fort Polk to testify against PFC D-----.  At that time, he was led to believe that PFC D----- had done something similar to what he had done to his wife.  He does not indicate that he or his wife complied with the request. 

10.  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.

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 evidence of record does not support the applicant's request for upgrade of his discharge.  

2.  The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  With the exception of documentation confirming he was AWOL, there is no evidence of record to corroborate the applicant's statement.  The available documentation does show he was AWOL for 26 days, a record of indiscipline that does not meet the standards of acceptable conduct and performance of duty for Army personnel.  In the absence of evidence showing his service was improperly characterized, he is not entitled to upgrade of his 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)                                         AR20100011386



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ABCMR Record of Proceedings (cont)                                         AR20100011386



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