IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100014558 


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 under other than honorable conditions discharge be upgraded to an honorable or general discharge.

2.  The applicant states, in effect, that he decided to go absent without leave (AWOL) after a nervous breakdown, precipitated by the receipt of divorce papers, and the guidance of his chaplain.  He states that he otherwise served honorably and never misrepresented his country or the Army.

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim).

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 1 November 1984.  Records show he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 15E (Pershing Missile Crewman).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E4.

3.  On 21 December 1986, the applicant was reported AWOL.  On 25 January 1987, he surrendered to military authorities at Fort Sill, OK.  

4.  On 26 January 1987, charges were preferred against the applicant for being AWOL during the period from 21 December 1986 to 25 January 1987.

5.  On 26 January 1987, the applicant consulted with legal counsel and 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 for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

7.  In the applicant's personal statement that was submitted with his request for discharge, the applicant states that his wife's request for divorce forced him to decide between her and the Army.  He states that he unsatisfactorily exercised every available option prior to going AWOL, but ultimately felt, in his words, "my family should come first, not the Army!"   

8.  On 11 February 1987, the separation authority approved the applicant's request for discharge and directed that he be issued an under other than honorable conditions discharge.  On 23 February 1987, the applicant was discharged accordingly.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) did not reflect an accurate computation of his total active service or time lost.  On 8 September 1989, a DD Form 215 (Correction to DD Form 214) was issued and confirmed he completed 2 years, 2 months and 19 days of total active service with 35 days of time lost due to being AWOL.
9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations) 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 3-7a, 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.

12.  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's contention that his discharge should be upgraded was carefully considered; however, there is insufficient evidence to support this contention.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  

3.  Neither the applicant's claim that he suffered a nervous breakdown nor his contention that his chaplain advised him to remain on unauthorized leave could be substantiated.  

4.  While there is nothing in the applicant's record to counter his claim of honorable service other than his AWOL offense and the accumulation of 35 days of lost time, these offenses are egregious enough to taint the entire period's overall characterization.  

5.  Based on the foregoing, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general or honorable discharge.

6.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making the applicant eligible for veterans' or medical benefits.

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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100014558



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