BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100020970 


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 discharge.

2.  He states his discharge was inequitable because it was based on one isolated incident in his 34 months of service.  He offers he was a good Soldier and he served his country with honor.  He adds he served 6 months and 29 days in Southwest Asia during Operation Desert Shield/Storm.  He states his one mistake was after the war when he left his post to chase down his family.  He explains that his wife kidnapped his one-year old son and left Fort Benning, GA to return to her family.  He maintains that because of the one mistake, he has no honor in the eyes of his countrymen for the service he gave to this great nation.

3.  He provides his self-authored statement and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 May 1989.  He served in Saudi Arabia from 1 September 1990 to 29 March 1991.

3.  On 8 November 1991, charges were preferred against him for being absent without leave (AWOL) from 26 August 1991 to 3 November 1991.

4.  On 8 November 1991, he consulted with counsel and he voluntarily 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.

5.  In requesting a chapter 10 discharge, he acknowledged he was making the request of his own free will, that he was afforded the opportunity to speak with counsel, that he understood he may be furnished a discharge 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 Department of Veterans Affairs benefits, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to submit a statement in his own behalf.

6.  On 3 February 1992, the appropriate authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge.

7.  On 9 March 1992, he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions character of service.  It also shows he completed 2 years, 7 months, and 7 days of net active service this period with the period of 26 August 1991 to 2 November 1991 listed as time lost.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  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 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.

10.  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.

11.  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.  There is no evidence in his records and he did not provide substantiating evidence that shows he was experiencing difficulties based upon his wife's alleged kidnapping of their son and her subsequent departure from Fort Benning. Furthermore, there is no evidence to show he reported his situation to his chain of command or law enforcement authorities, or solicited help from the support channels available at his installation.

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows he voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.

3.  His record of service included 68 days of time lost.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20100020970



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ABCMR Record of Proceedings (cont)                                         AR20100020970



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