IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110002593 


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 or general discharge.

2.  The applicant states he went through the proper chain of command to get his overseas orders changed due to the financial distress.  He was married and had a very young child.  When he was stationed at Fort Stewart, GA, he had to pawn things to be able to pay the rent, utilities and get food, etc.  They had no family or friends to help them.  When he received his orders for an overseas assignment he talked with his chain of command and they had him complete a request for change of orders; they even had him talk to the chaplain.  He spoke with everyone they sent him to see, and filled out every piece of paper the was given, and the Army still said no.

3.  He also states that he had a family to take care of and an obligation to the Army.  He was torn up with grief as to what to do.  He followed the instructions he was given by his chain of command and he kept getting rejected by the Army.  He was never late for formation, he passed every physical fitness test, and he performed his job well.  He also received a good conduct award.  He had nowhere else to turn, so he took his family back to Indiana to be near his folks and waited patiently for the Army to do what they had to do.  He has suffered because the Army refused to help him and his family.

4.  He provides two letters of support from his wife and father-in-law.


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 18 November 1986 in pay grade E-1 for a period of 3 years, with prior service in the U.S. Marine Corps.  He completed training and he was awarded military occupational specialty 55B (Ammunition Specialist). 

3.  He was reported absent without leave (AWOL) on 4 January 1988 and dropped from the rolls on 2 February 1988.  He was apprehended by civilian authorities on 23 May 1988 and returned to military control the same day.

4.  A DD Form 458 (Charge Sheet), dated 1 June 1988, was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  He was charged with one specification of being AWOL from 4 January through 23 May 1988.

5.  On 1 June 1988, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and he could be ineligible for many or all benefits administered by the Veteran's Administration.  He waived his rights, admitted to the period of AWOL, and elected not to submit a statement in his own behalf.

6.  On 2 June 1988, the Commander, Special Processing Company, recommended approval of the applicant's request.  He stated that based on the 
applicant's previous record, punishment could be expected to have a minimal rehabilitative effect and he believed a discharge at that time to be in the best interest of all concerned.

7.  On 24 June 1988, the appropriate separation authority approved his request and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to pay grade E-1.

8.  On 26 July 1988, he was accordingly discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.  He was credited with completing 1 year, 3 months, and 20 days of creditable active service.  He also had lost time from 4 January to 22 May 1988.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  He provided two letters of support from his wife and father-in-law wherein they stated the applicant and his wife experienced a lot of financial problems when he was in the Army.  The applicant felt like the Army was not there for him so he left the Army the only way he could.

11.  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.

12.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently 
meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention has been noted; however, the evidence of record shows he was charged with being AWOL from 4 January to 22 May 1988.  After consulting with counsel, he voluntarily requested a discharge and in doing so he admitted guilt.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly.  He also acknowledged he understood he could be issued an Under Other Than Honorable Conditions Discharge Certificate.   

2.  He has provided insufficient evidence or argument to show his discharge should be upgraded and his military record contains no evidence which would warrant an upgrade of his discharge.  He also has submitted no evidence to show he had any financial or personal problems and his chain of command failed to help him resolve them.  Even if he did have financial or personal problems there were many alternate remedies he could have used, but he chose not to do so.  His military records contain no evidence which would entitle him to an upgrade of his discharge to general or fully honorable.  

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

4.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20110002593



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110002593



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1