IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20110001127 


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 general under honorable conditions.

2.  The applicant states he was served divorce papers and was denied leave to go home to try to change his wife's mind.  Because he was young, he went anyway.  Once he found out he could not change her mind, he returned to the military, but it was too late.
 
3.  The applicant provides no additional evidence in support of his application.

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.  On 24 August 1984, the applicant enlisted in the Regular Army at the age of 18 years and 4 months.  He completed his initial training and was awarded military occupational specialty 94B (Food Service Specialist).  He was subsequently assigned to Fort Sill, Oklahoma.

3.  On 24 August 1985, the applicant was advanced to private first class/pay grade E-3.

4.  On 1 May 1986, the applicant accepted nonjudicial punishment (NJP) for failing to go to his appointed place of duty on or about 17 and 21 April 1986.

5.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he was absent without leave (AWOL) from 21 to 28 April 1986 (8 days) and from 6 May to 7 July 1986 (62 days).

6.  On 7 July 1986, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 for AWOL from on or about 6 May to 7 July 1986.

7.  On 8 July 1986, the applicant 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 available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, the applicant acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  In his statement, the applicant:

	a.  admitted to willfully committing the act of AWOL, but only after giving it much deliberation;

	b.  had mental difficulties dealing with military life and was losing his grip on reality.  He had gone to his section sergeant, but after waiting 3 weeks with no response, he started causing minor difficulties;

	c.  was turned over to the first sergeant who then granted him an appointment with the mental health clinic;
	d.  was recommended for termination from military service as soon as possible by the mental health clinic.  However, because he was too good of a Soldier and had not gotten into trouble, he decided to go AWOL for a week; and

	e.  received NJP because his commander, a major, did not believe in discharge for mental reasons.  He had all he could take and had to get out of the military.  Desertion was the only way.

9.  On 18 July 1986, the separation authority approved the applicant's request for discharge and directed that he be issued a DD Form 794A (Other Than Honorable Conditions Discharge Certificate).  On 8 August 1986, the applicant was discharged accordingly.  He completed a total of 1 year, 9 months, and 6 days of creditable active duty service and had accrued 70 days of lost time.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  Army Regulation 635-200 (Personnel Separations) sets 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.

13.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 1 year for an AWOL of more than 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge under other than honorable conditions should be upgraded to general under honorable conditions because he was too young at the time and went home even though he was denied leave.

2.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was more than 18 years of age, had satisfactorily completed training, had served for approximately 21 months, and had attained the rank of private first class/pay grade E-3 before any negative incidents were documented.  His prior satisfactory performance shows he was neither too young nor immature to serve honorably.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons were therefore appropriate considering all of the facts of the case.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct for Army personnel.  His lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

6.  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)                                         AR20110001127



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110001127



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1