IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100019050 


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 his discharge under other than honorable conditions be upgraded.

2.  The applicant believes his discharge merits correction and the character of service regarding his separation was issued erroneously.  He contends he had marital problems and as a result of this emotional turmoil his ability to complete assigned tasks was diminished.  He goes on to state he was unable to cope with the pressure and he made numerous requests to leave the Army due to not being able to adapt but his superiors sought to avoid granting his request.  He was assigned to a special personnel unit for counseling prior to starting basic training and he spoke to a clergy regarding the matter.  Recognizing he was unable to adapt to the military he went absent without leave (AWOL) but he didn't hide his whereabouts.  He was absent 31 days.

3.  The applicant states he was instructed to report to Fort Knox, KY.  He complied with the orders, and he was told if he had returned one day earlier he would have received an Article 15 and would have been permitted to resume basic training.  At Fort Knox he requested to remain in the Army.  He was informed he was going to be discharged under chapter 11 for failure to adapt and after six months he would be allowed to reenlist once his personal issues had been resolved.  He was not discharged under chapter 11 as promised but under chapter 10 with a discharge under other than honorable conditions.  He believes this occurred by mistake and it is unjust. 

4.  The applicant provides no documentary evidence 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 enlisted in the Regular Army on 16 February 1989 for a period of 4 years.  While in basic training, he went AWOL on 31 March 1989 and returned to military control on 31 May 1989.  On 21 June 1989, charges were preferred against the applicant for the AWOL period.

3.  On 21 June 1989, the applicant consulted with counsel and requested 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.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, 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 laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated:

* Upon his arrival at basic training he was made aware of discrepancies in his enlistment process
* His wife was in the Air Force
* His recruiter assured him and his wife that a "joint-spouse" assignment was easily obtained which was untrue
* He was a licensed commercial pilot and he inquired about flying opportunities in the Army but his recruiter told him he was unqualified and the Army wasn't looking for pilots
* When he got to basic training the drill sergeant told him he had been taken advantage of and he would try to correct the unfortunate situation but the chances of attending flight school were not favorable
* His wife wanted a divorce
* He could not handle the stress
* He kept in touch with the Army the entire time he was AWOL
* Once he was allowed time (31 March 1989 to 31 May 1989) to straighten out the situation he turned himself in to the military police station at Fort Knox 

4.  On 7 July 1989, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

5.  He was discharged under other than honorable conditions on 14 July 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had a total of 2 months and 28 days of creditable active service with 61 days of lost time.

6.  No evidence shows chapter 11 discharge proceedings were recommended.

7.  There is no indication in the available records that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

9.  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.


10.  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 contends his ability to serve was impaired by his marital problems.  However, marital problems are not normally grounds for upgrading a discharge.  

2.  The applicant contends he was AWOL for 31 days.  He was AWOL 61 days.

3.  The applicant contends he was informed he was going to be discharged under chapter 11 for failure to adapt.  However, no evidence supports this contention.  The evidence shows he consulted with counsel on 21 June 1989 and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under Army Regulation 635-200, chapter 10. 

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  The applicant's brief record of service included 61 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20100019050



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ABCMR Record of Proceedings (cont)                                         AR20100019050



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