BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20100029922 


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 that his character of service and narrative reason for separation be upgraded. 

2.  The applicant states a line of duty injury prevented him from returning to duty. His command was aware of his incapacitation and hardship and should have given him more time to solve the issues.

3.  The applicant provides 5 pages of medical records, a Request for Emergency Leave, a DA Form 31 (Request and Authority for Leave), a character reference letter, a Department of Veterans Affairs (VA) letter, and an Office of Personnel Management letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant, an Army Reservist, was called to active duty on 23 August 2005 having 2 years and 29 days of prior active duty and 13 years, 4 months, and 20 days of prior inactive service.  He served in the military occupational specialty 88M (Motor Transport Operator). 

2.  The applicant served in Iraq from 10 November 2005 through 20 March 2006.

3.  On 18 March 2006, a request for emergency leave was submitted to allow the applicant to ensure proper care was set up for his 16-year old son upon his release from state custody.  The official determination [denial] is not of record.

4.  The available medical records show the applicant received physical therapy and analgesics for back pain from 6 March 2006 through 20 March 2006. 

5.  A DA Form 31 shows the applicant was granted Rest and Recuperation leave for the period 21 March 2006 through 8 April 2006.

6.  On 9 April 2006, when the applicant failed to return from leave, he was reported as absent without leave (AWOL).  

7.  On 5 May 2006, a private doctor diagnosed the applicant as suffering from a herniated disc at L4-5.

8.  On 10 November 2006, the applicant ended his period of AWOL with a voluntary surrender to military authorities.

9.  On 30 November 2006, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  Further, the applicant indicated that he understood that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant did not submit a statement in his own behalf.  The unit commander recommended approval of the chapter 10 request with an under other than honorable conditions discharge (UOTHC).  

10.  On 16 February 2007, the separation authority approved the chapter 10 request and directed that applicant be reduced to the lowest enlisted rank and separated with a UOTHC discharge.  

11.  The applicant was discharged on 7 March 2007 with a UOTHC discharge.  The reason for discharge is listed as Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had 11 months and 13 days of creditable service during this period with 215 days of lost time due to AWOL.

12.  On 23 August 2010, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.

13.  An 11 August 2007 letter, submitted by a fellow Soldier, describes the applicant as a devoted family member who cares for his fellow Soldiers.

14.  The VA notified the applicant that they had determined his last period of service was considered honorable for VA purposes.

15.  On 6 October 2009, the Office of Personnel Management notified the applicant that he had been found disabled, as a mail handler, due to post traumatic stress disorder, degenerative disc disease with a herniated disc, and torn meniscus of the knee.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations)  sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge UOTHC is normally considered appropriate.

17.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

18.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states a line of duty injury prevented him from returning to duty. His command's awareness of his incapacitation and hardship should have given him more time to solve the issues.

2.  The applicant was being treated for back pain at the time he was granted leave.  It appears that while on leave he was diagnosed with and had surgery for a herniated disc apparently through a private physician. 

3.  The available record does not contain and the applicant has not provided any evidence to show that he communicated with the Army to request either an extension of his leave or the need for surgery for his herniated disc.  The applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to his discharge.

4.  While it is shown that the applicant had both family and medical problems, they are not sufficient to justify his AWOL for 261 days while assigned to a hostile fire zone.  He voluntarily requested discharge in lieu of trial by court-martial and was properly separated for his misconduct. 

5.  The award of benefits from the VA or other governmental agency does not mandate change to or demonstrate an inequity or impropriety in Army's actions. 

6.  The discharge process must be presumed to have been in accordance with applicable law and regulations and the applicant's service appropriately characterized in the absence of evidence to the contrary.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

 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)                                         AR20100029922





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ABCMR Record of Proceedings (cont)                                         AR20100029922



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