IN THE CASE OF:	  

		BOARD DATE:	  7 January 2011

		DOCKET NUMBER:  AR20100017464 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to upgrade his Under Other Than Honorable Conditions Discharge to an Honorable Discharge. 

2.  He states the following:

* His requests for marital counseling were made and denied, repeatedly
* A request for hardship discharge was made and denied
* Another request for discharge was made and in process
* As a result of the process, he was placed in dire straits
* He was given direct orders from the warrant officer in charge to absent himself from his workstation
* He was denied access to his personal property without proper authority
* He was unofficially confined to his barracks
* He was not allowed to partake of evening meals
* On 19 June 1990, he allegedly found a sergeant under the hood of his privately owned vehicle making the vehicle inoperable
* He felt an immense sense of danger after witnessing his vehicle being tampered with
* These problems along with his marital problems placed him under considerable duress and influenced his actions
* He willingly returned himself to military control after seeking remedies through his Member of Congress  

3.  He contends that, upon his return, he was issued uniforms and briefly interviewed.  He was not offered legal counsel, a choice to finish the term of his enlistment contract, or a new duty station.  He was uninformed of the exact reason for his discharge and was rushed through completing the paperwork.  Up until recently, he was unaware of the possibility of changing the nature of his discharge.  

4.  He argues he was never in the control of civil authorities and would like to dispute specification one on the DD Form 458 (Charge Sheet).  

5.  He provides copies of the following documentation in support of his request:

* A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Two certificates
* A DA Form 4187 (Personnel Action)
* A DD Form 458
* An excerpt of his separation packet under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, in lieu of trial by court-martial
* A DD Form 616 (Report of Return of Absentee)
* Headquarters, U.S. Army Armor Center and Fort Knox, Orders 
   126-307, dated 6 May 1991
* A DD Form 214 
* Two letters of support
* An Army/American Council on Education Registry Transcript

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.  He provided a copy of a DD Form 4 which shows he enlisted in the U.S. Army Reserve, Delayed Enlistment Program (DEP) for a period of 8 years, on 
16 February 1989.  He was released from DEP status and enlisted in the Regular Army for 4 years, on 22 February 1989.  After completion of basic combat training, he was awarded military occupational specialty 63W (Wheeled Vehicle Repairman).

3.  He provided a copy of two certificates.  The first certificate shows he was awarded the Certificate of Achievement for outstanding achievement on the End-of-Cycle Test.  The second certificate shows he successfully fulfilled all the requirements for graduation from the Wheel Vehicle Repairer Course.  

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in 
item 18 (Appointments and Reductions) that he was promoted to the rank and pay grade of private/E-2 on 27 August 1989.  Item 35 (Record of Assignments) of his DA Form 2-1 shows he was assigned to the 507th Maintenance Company, 2nd Battalion, 7th Air Defense Artillery, Fort Bliss TX on 15 September 1989.  

5.  He provided a DA Form 4187 which shows he was reduced to the rank and pay grade of private/E-1 on 27 February 1990. 

6.  Item 18 of his DA Form 2-1 also shows he went into an absent without leave (AWOL) status on 1 June 1990 and remained so until 5 June 1990.  He went into an AWOL status again on 20 June 1990 and was dropped from the rolls (DFR) on 20 July 1990.  

7.  He provided a copy of a DD Form 616 which shows he surrendered to military authorities and returned to military control on 7 April 1991.

8.  He also provided a copy of a DD Form 458 which shows charges were preferred against him on 15 April 1991 for the following:

	a.  Specification One - On or about 1 June 1990, without authority, absenting himself from his unit and did remain absent until on or about 5 June 1990,

	b.  Specification Two - On or about 20 June 1990, without authority, absenting himself from his unit and did remain absent until on or about 7 April 1991.

9.  He provided a copy of an excerpt of his separation packet.  The excerpt provided is void of evidence showing he received counsel prior to his request. 

10.  However, his military personnel record contains a copy of the separation packet in its entirety.  

11.  On 15 April 1991, he consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 
635-200.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Under Other than Honorable Discharge; that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an Under Other than Honorable Conditions Discharge.  He elected not to submit a statement on his own behalf.   

12.  His record also contains a copy of a memorandum, Subject:  Admission of AWOL for Administrative Purposes, that shows he and a Judge Advocate General Corps (JAGC) attorney signed this memorandum showing he voluntarily declared he went AWOL from the U.S. Army from 1 to 5 June 1990 and from    20 June 1990 to 7 April 1991.  

13.  On 22 April 1991, the separation authority approved his request for discharge and directed he be furnished a discharge Under Other Than Honorable Conditions.

14.  Accordingly, he was discharged Under Other Than Honorable Conditions on 13 May 1991, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He served 1 year, 5 months, and 1 day of total active service with 295 days of lost time due to AWOL.

15.  There is no evidence in the available record to show he applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within that board’s 15-year statute of limitations.

16.  He provided two letters of support which state the following:

	a.  His father states the applicant is a man of good moral character, a good father and a college graduate with high grades and honors.  He was married very young and was under a tremendous amount of stress due to his failing marriage.  His father believes the discharge his son was given lacks creditability and in a civilian case would have a different outcome,

	b.  His ex-wife states that during the beginning of his military service, she left him and returned to the state of Michigan with their newborn son.  Their son was born with complications and diagnosed with failure to thrive.  This added to the 


stress of their marriage.  This along with many other problems added to his inability to cope and, in effect, she considered his unit to have played a role in their eventual divorce.  She contends his discharge should be upgraded.  
 
17.  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, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

18.  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.  

19.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  His request to upgrade his Under Other Than Honorable Conditions Discharge to an Honorable Discharge was carefully considered. 

2.  He has not submitted sufficient evidence or a convincing argument to support his request.  The evidence shows court-martial charges were preferred against him for two specifications for going AWOL, totaling 295 days.  Despite his contention of not receiving the appropriate legal counsel, he voluntarily submitted a request for discharge for the good of the service - in lieu of trial by court-martial.  His record shows he admitted to the periods of AWOL in question.  His chain of command supported his request and, accordingly, he was discharged.

3.  The evidence shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  

4.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that prior to requesting discharge.  The reason for discharge and the characterization of service were both proper and equitable.

5.  In view of the foregoing, there is no basis to grant the requested relief. 

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)                                         AR20100017464





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ABCMR Record of Proceedings (cont)                                         AR20100017464



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