IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100023000 


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 to an honorable discharge.

2.  The applicant states his wife gave birth on 14 March 1990 and she suffered from severe post-partum depression.  This caused stress on his family as well as on him as a Soldier.  He was worried that his wife was unfit to take care of his rather unhealthy son at the time.  He discussed the issue with the Office of the Inspector General but his issue was disregarded.  Since he was unable to get the help he needed, he decided to take leave on his own to be with his family.  He ultimately returned to duty after he resolved the family situation.  After he was discharged he worked at a hospital as well as a correctional facility but he was forced to retire after an automobile accident.  He is currently on social security and he has returned to his parent's home due to a financial hardship.  His priority is to purchase a home which necessitates an upgrade of his discharge.

3.  The applicant provides his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Certificate of Birth
* Security Guard Training Certificate
* Army Achievement Medal Certificate
* Diploma for completion of infantry training
* Certificate of Appreciation
* Certificate of completion for the Basic Skills Education Program
* Termination of employment letter
* Letter from the Department of Veterans Affairs (VA)
* Medical records dated between 2004 and 2008
* Certificate for Pre-Service Correctional Orientation

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 records show he enlisted in the Regular Army for 3 years and 14 weeks on 23 February 1988.  He completed basic combat and advanced individual training, and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class/E-3. 

3.  His records show he served in Hawaii from 9 June 1988 to 20 March 1990.  He was awarded the Army Service Ribbon, Air Assault Badge, National Defense Service Medal, Overseas Service Ribbon, Army Service Ribbon, Army Achievement Medal, Marksman Marksmanship Qualification Badge with Grenade and SAW (M-249) Bars, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 16 May 1990, he was reported in an absent without leave (AWOL) status. He returned to military control at Fort Dix, NJ, on 16 July 1991.  

5.  On 19 July 1991, court-martial charges were preferred against the applicant for one specification of being AWOL from 16 May 1990 to 15 July 1991. 

6.  On 19 July 1991, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of trial by court-martial.

7.  In his request for discharge, he indicated that he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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 laws.  He also indicated under no circumstances did he desire further rehabilitation and that he had no desire to perform further military service.

8.  He submitted a statement wherein he indicated he went into an AWOL status to help his wife and newborn child relocate. 

9.  On 27 August 1991, his immediate commander recommended approval of the applicant's request with the issuance of an under other than honorable conditions discharge.

10.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued an under other than honorable conditions discharge.  The applicant was accordingly discharged on 9 October 1991. 

11.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  This form further confirms he completed a total of 2 years, 5 months, and 12 days of creditable active military service and he had 425 days of lost time.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  He submitted various certificates of training and appreciation with his application.  He also submitted a letter from the VA regarding a home loan certificate and medical documents regarding his illness. 
14.  Army Regulation 635-200, in effect at the time, set 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.

	a.  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

	b.  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 under other than honorable conditions discharge should be upgraded due to personal problems that he was experiencing at the time.

2.  His records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  The difficulties he encountered as a result of his wife giving birth at the time are noted.  He states he took "leave" to be with his family.  Had he been granted leave by his chain of command, about the most leave he would have been granted would have been 30 days.  However, he was AWOL for over one year.  Such a lengthy AWOL was not a reasonable solution to his family problem.
4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an 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)                                         AR20100023000



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ABCMR Record of Proceedings (cont)                                         AR20100023000



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