IN THE CASE OF:	  

		BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110000632 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states:

* when he was discharged he had several family issues that he could not handle
* he had medical problems that prevented him from completing physical training
* he does not believe he was in physical or mental shape to complete daily physical training or to perform as a top military officer
* when he was discharged he was informed that if he came back within 6 months, his discharge would be changed to honorable
* he believed his discharge would automatically change after a period of time

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* a letter from his former spouse
* copies of his Army medical records
* Army Review Boards Agency letter, dated 30 September 2010
* Social Security Notice, dated 6 December 2010

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.  With 1 year, 9 months, and 29 days of prior honorable service as an enlisted member of the Kentucky Army National Guard (KYARNG), the applicant enlisted in the Regular Army on 6 February 1991.  He completed training as a cavalry scout on 21 August 1990 while he was a member of the KYARNG.

3.  On 6 August 1992, the applicant was notified that charges were pending against him for being absent without leave from (AWOL) from 1 March until 4 August 1992.  He acknowledged receipt of the notification and he met with counsel.  He submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, the applicant acknowledged he understood:

* if his request for discharge were accepted, he could be discharged under other than honorable conditions
* he could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions

4.  The appropriate authority approved his request for discharge on 19 August 1992 and directed the issuance of a discharge under other than honorable conditions.

5.  On 9 September 1992, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 
635-200, chapter 10.

6.  A review of his records does not show he ever petitioned the Army Discharge Review Board for an upgrade of his discharge with that board's 15-year statute of limitations.

7.  The applicant provides a letter from his former spouse who states:

* she has known the applicant since 17 April 1992
* he has had back and leg pain and problems since she has known him
* he has been to the emergency room and to see doctors repeatedly
* he was diagnosed with avascular necrosis in August 1997
* he began drawing 100-percent disability in January 1998
* he believes his disability is the reason why he could not complete physical training during his service
* please consider amending his discharge to honorable

8.  He also submits copies of his Army medical records which show he was seen by doctors and treated for lower back pain, leg pain, chest pain, and blisters between 26 March and 13 August 1991.

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

	a.  Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished an individual who is discharged for the good of the service.

	b.  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.

	c.  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's contentions have been noted.  His supporting evidence has been considered.

2.  There is no evidence in the available records showing he was experiencing family problems while he was in the Army.

3.  The medical records the applicant submits show he was seen by medical personnel on numerous occasions for body pain.  However, that is an insufficient justification for being AWOL.

4.  He was AWOL for more than 5 months.  There is no evidence in his record showing he was told his discharge would automatically change after a period of time.  He was discharged in accordance with the applicable regulation and the type of discharge he received appropriately characterizes his overall record of service.

5.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from military service.

6.  The applicant's lengthy period of AWOL rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

7.  In view of the foregoing, there is no basis for granting the applicant's request.


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 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)                                         AR20110000632



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ABCMR Record of Proceedings (cont)                                         AR20110000632



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