IN THE CASE OF:	  

		BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100012796 


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 or a general under honorable conditions discharge.

2.  The applicant states when he was stationed at Fort Eustis, VA, his 3-day old daughter died in his arms and it was a traumatic event for him.  He adds he attended his daughter's funeral and he did not return to Fort Eustis when his authorized leave period was up.  As a result, he was considered absent without leave (AWOL).

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter of support from his attending psychiatrist.

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 10 November 1981 for a period of 4 years.  Upon completion of basic training he was assigned to Company B, 1st Battalion, Transportation School Brigade, Fort Eustis, to attend advanced individual training (AIT).

3.  On 18 February 1982, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 8 February to 10 February 1982.

4.  The applicant completed AIT and he was awarded military occupational specialty (MOS) 68B (Aircraft Power Plant Repairer) on 7 June 1982.

5.  A DA Form 4187 (Personnel Action) shows the applicant's duty status was changed from present for duty to AWOL, effective 1 July 1982.

6.  An FDCF Form 691 (Personnel Control Facility [PCF] Information Sheet) shows the applicant was apprehended by authorities at Centril Falls, RI and returned to military control on 2 March 1983.

7.  An FDCF Form 691A (PCF Interview Sheet), dated 2 March 1983, shows the applicant was asked "Why did you go AWOL?" and he responded, "I went AWOL from Fort Eustis because I was just not right for the Army and it is/was not good for me.  I've had too many problems at home which got very serious so I left."  In response to the question, "What action did you take before going AWOL to solve the problem (What Army channels were utilized)?" he responded, "I did use my chain of command, starting with my platoon sergeant, which brought me all the way up to my commanding officer, who then kept refusing me."

8.  On 3 March 1983, court-martial charges were preferred against the applicant for violation of Article 86, UCMJ, for being AWOL from 3 July 1982 to 1 March 1983.

9.  On 4 March 1983, the applicant consulted with legal counsel and he voluntarily requested a 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.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

   a.  He was afforded the opportunity to consult with counsel.  He was advised he may be discharged under other than honorable conditions, that 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, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

   b.  The applicant acknowledged he understood that there is no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or this Board if he desired a review of his discharge; however, an act of consideration by either board did not imply that his discharge would be upgraded.

   c.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that statements in his own behalf were not submitted with his request.

10.  On 4 March 1983, the applicant was placed in voluntary excess leave status pending the disposition of his discharge request.

11.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with a character of service of under other than honorable conditions.

12.  On 14 March 1983, 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 and reduction to the lowest enlisted grade.

13.  The applicant's DD Form 214 shows he was discharged on 22 March 1983 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, with service characterized as under conditions other than honorable.

   a.  At the time he had completed 8 months and 13 days of net active service.

   b.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 8 February to 9 February 1982 [2 days] and from 1 July 1982 to
28 February 1983 [242 days].


14.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

15.  In support of his application, the applicant provides a letter in support of his request from E----- R. V-----, Medical Doctor, McInnis Health Group, dated
12 April 2010, that shows the applicant has been a patient under her care since 2004 and he is being treated for diagnoses of Bipolar Disorder and Generalized Anxiety Disorder.  She states the applicant reported symptoms of Post-Traumatic Stress Disorder related to the death of his infant daughter from complications of prematurity, which occurred while he was in the military, and that he attributes to causing him to become addicted to substances, which led to his discharge.  Doctor V----- adds that the applicant is asking for his discharge to be upgraded to an honorable discharge due to the circumstances that occurred.

16.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 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.

   b.  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.

   c.  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 contention and the letter of support he provides were carefully considered.  While the sincerity of the applicant's comments is not in question, records show he initially went AWOL for a period of 2 days (well before his daughter tragically died) and then went AWOL again for a period of 242 days.  In addition, at the time of his return to military control after his second period of AWOL he stated he was not right for the Army and the Army is/was not good for him.  Thus, based on the available evidence, the applicant's contention that he attended his daughter's funeral and he was considered AWOL when he stayed past his authorized leave time is not sufficiently mitigating to warrant relief.

2.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-
martial was voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

3.  Records show the applicant was AWOL for a total of 244 days (i.e., 8 months and 4 days) and he completed only 8 months and 13 days of his 4-year active duty obligation.  Thus, the quality of the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100012796



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ABCMR Record of Proceedings (cont)                                         AR20100012796



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