BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100019194


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect, the following:

   a. He was absent without leave (AWOL) because his father had a stroke and he was caring for him.  He was unable to care for himself.  

   b. Shortly after his father's stroke, both of his grandfathers died within a week of each other.  

   c. His wife and children were involuntarily returned to the United States in March 1986, following the termination of his command sponsorship.  

   d. Once he and his family were together, it was difficult to consider separating again to return to duty in Germany.  

   e. The above four events caused him great emotional turmoil and given his state of mind, he was unable to cope.

   f. At the time he went AWOL, he was promotable with only two and a half months left on his 4-year term.



3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Photocopied first page of a court order, pertaining to the case of McHenry versus McMichael Concrete and Travelers Indemnity Companies
* Photocopy of the front side of two funeral programs, pertaining to the funeral services of Mr. Axxxxxxx McHenry, Sr. and Mr. Exxxx Rivers, Sr.

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 December 1982, for a period of 4 years.  He completed training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty was corporal (CPL)/E4.

3.  On 16 December 1985, his command directed the return of his dependents to the continental United States (CONUS), the reason cited was tension between the applicant, his spouse, and family members.  The command also cited that the advanced return of his family would provide less tension and enhance his ability to better serve the military. 

4.  On 24 January 1986, he was barred from reenlistment.  On 6 March 1986, he was administratively removed from the sergeant/E-5 recommended promotion standing list, due to his approved bar to reenlistment.

5.  Orders 117-1, 520th Personnel Service Company, dated 28 May 1986, authorized him 30 days of emergency leave.  The reason cited in the additional instructions was "due to critical illness of father (Right-sided CVA-Massive)." 

6.  On 27 June 1986, he was reported AWOL from Company E, 12th Engineer Battalion, 8th Infantry Division (Mechanized), Dexheim, Germany.  He remained AWOL until he returned to military control on 16 March 1987.  

7.  There is no documentation in the available records, nor has he provided any documentation, to substantiate his efforts to obtain a compassionate reassignment or an early release from active duty.

8.  On 20 March 1987, court-martial charges were preferred against him for being AWOL, from 27 June 1986 to 16 March 1987, in violation of Article 86, Uniform Code of Military Justice (UCMJ).
 
9.  On 20 March 1987, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the 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, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.

10.  In his request for discharge, he acknowledged 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 of Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

11.  In his personal statement that was submitted with his request for discharge, he stated, in effect, that extenuating family matters (i.e. his father's stroke, the death of both of his grandfathers, his mother's nervous breakdown, and his family's movement back to CONUS) resulted in his decision to remain stateside following the expiration of his emergency leave.  He stated that his expiration term of service was 30 November 1986, and since he was barred from reenlistment, he knew his mom, dad, wife, and kids needed him more than they [the Army] wanted him.  

12.  On 1 April 1987, the separation authority approved his applicant's request for discharge and directed he be issued an under other than honorable conditions discharge.  On 30 April 1987, he was discharged accordingly.  His DD Form 214 confirms he completed 3 years, 9 months, and 11 days of net active service this period.  He also had 7 months and 18 days of time lost due to being AWOL and in confinement.
13.  There is no indication that he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  He provides:

   a. A photocopy of the first page of a court order, pertaining to the case of McHenry versus McMichael Concrete and Travelers Indemnity Companies, dated 5 September 2003.  This case appears to pertain to a workers' compensation case involving the applicant's father, Mr. Axxxxxxx McHenry, Sr., who was deceased when the case went to court.  The extract mentions injuries sustained by his father on 5 May 1986.

   b. A photocopy of the front side of two funeral programs, pertaining to the funeral services of Mr. Axxxxxxx McHenry, Sr. and Mr. Exxxx Rivers, Sr., who died on 3 July 1986, and 26 June 1986, respectively. 

15.  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.

16.  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.

17.  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.  






DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  While the ABCMR is sympathetic to his family situation at the time, the evidence of record fails to support his attempts to request any of the available remedies in place, aside from the granting of emergency leave. 

3.  His records show 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.  

4.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, including his bar to reenlistment and         7 months and 18 days of time lost, due to being AWOL and in confinement, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to either a general or honorable 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100019194



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