IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110004152 


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.  He also requests correction of his discharge document to show a different separation authority and narrative reason for his discharge.

2.  The applicant states he was coerced into submitting his request for discharge.

	a.  He was assigned overseas to Germany in July 1989.  His problems began when his wife arrived in Germany unannounced with their child on 11 September 1990.  As a result, he was required to extend his overseas tour.

	b.  His wife began going out at night with the wives of other Soldiers.  He then learned from other Soldiers that she was seen with other guys.

	c.  On or about 12 December 1990, the applicant and his wife went out to a club.  At the end of the evening, she asked if they could give a male Soldier she knew a ride home.  [The applicant acknowledges he was intoxicated at the time.]  Based on the conversation during the drive to the Soldier's barracks, the applicant became suspicious as to how his wife had met the Soldier.  An argument ensued and the Soldier, sitting behind the applicant who was in the front passenger seat of the car, began to choke the applicant.

	d.  When they arrived at the barracks, the applicant told the charge of quarters (CQ) that the Soldier had assaulted him and he wanted to press charges against him.  However, the Soldier refuted his story stating the applicant had assaulted him.  The applicant's wife also stated the applicant had assaulted her in the past.  The next day, the company commander imposed punishment against the applicant and enrolled him in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

	e.  He deployed to Southwest Asia on or about 6 January 1991.  His wife remained in Germany and wrote bad checks against his bank account.

	f.  After redeploying to Germany, he went on leave to the United States for 30 days from 30 July to 30 August 1991; however, he failed to return to his unit on time.  On 1 or 2 September 1991, he called his unit to explain he was having marital difficulties and needed additional time to take care of his divorce.

	g.  He states the officer in charge explained to him that his unit had left on a training exercise and he should take care of his personal problems.

	h.  The applicant acknowledges he stayed away from his unit longer than he was supposed to, but adds he was experiencing both mental and physical stress.  He denies being absent without leave (AWOL) based on his telephone call to his unit and the fact that he returned to Germany.  He requests consideration of all the facts surrounding his case and an upgrade of his discharge to fully honorable.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and several documents from his separation packet, including his request for discharge.

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 28 March 1989 for a period of 3 years.  He was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).

3.  Headquarters, U.S. Army Infantry Training Center/One-Station Unit Training, Fort Benning, GA, Orders 128-6, dated 6 July 1989, and Headquarters, 2nd Armored Division (Forward), Germany, 1st endorsement to Orders 133-25, dated 2 August 1989, assigned the applicant to Company C, 1st Battalion, 41st Infantry, 2nd Armored Division (Forward), Germany, effective 2 August 1989 and established his date of eligibility to return from overseas (DEROS) as 25 March 1992.

4.  Headquarters, 2nd Armored Division (Forward), Germany, 2nd endorsement, dated 10 January 1990, subject:  Request for Change of Tour to "With Dependents Pertaining to [Applicant]," shows the applicant's request was approved and his DEROS was adjusted to 30 July 1992.

5.  A DA Form 1695 (Oath of Extension of Enlistment), dated 11 September 1990, shows the applicant voluntarily extended his 3-year enlistment in the Regular Army to a period of 3 years and 5 months to meet the service remaining requirements for a "with dependents" tour of duty in Germany.

6.  Item Number 13 of a DA Form 1594 (Daily Staff Journal or Duty Officer's Log) for the period 12 December 1990 shows the applicant, his wife, and another Soldier entered the company area of Company C, 1st Battalion, 41st Infantry, at 0100 hours, 13 December 1990, and provides a summary of the comments each of them made to the CQ regarding the threats, verbal abuse, and alleged assault that had just occurred.

7.  The applicant served in Southwest Asia from 8 January to 22 July 1991.

8.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet).

9.  On 4 November 1991, the applicant consulted with legal counsel and voluntarily requested 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.  His request shows he understood that charges were preferred against him for violation of the Uniform Code of Military Justice (UCMJ) for one specification of Article 86 (AWOL) and one specification of Article 87 (Missing Movement).

	a.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request.  He acknowledged he was guilty of the charges against him or of lesser-included offenses contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.

	b.  He was advised that he might be discharged under other than honorable conditions, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life if he were issued an Under Other Than Honorable Conditions Discharge Certificate.

	c.  He was advised that he could submit any statements he desired in his own behalf.  The applicant submitted a statement with his request, dated 4 November 1991, that essentially presented the same argument he now presents in his application to this Board.

		(1)  It also shows he stated, "I called the unit to request an extension [of leave], but nobody from the unit would authorize it."

		(2)  He stated, "I recognized that she was manipulating me and knew that I would be in trouble for being AWOL.  I gave up on her and tried to get back to Germany.  Not knowing what to do, I called Fort Ord and was told to turn myself in to a military installation.  On 8 October 1991, I went to the 32nd Street Naval Base and they arranged my transportation back to Garlstedt, Germany."  He concluded his statement by asking the separation authority to "please approve my request for discharge for the good of the service."

	d.  The applicant placed his signature on both his statement and his request for discharge.

10.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge.

11.  On 7 November 1991, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  He also directed the applicant be reduced to private (PV1)/pay grade E-1.

12.  The applicant's DD Form 214 shows he was discharged on 26 November 1991 for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.

   a.  He completed 2 years, 6 months, and 18 days of net active service.

	b.  Item 29 (Dates of Time Lost During This Period) shows he had lost time from 30 August through 9 October 1991.

13.  The applicant's military personnel records do not contain any evidence that he requested a compassionate reassignment or hardship discharge.

14.  The applicant's military personnel records do not contain any evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  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.  A punitive discharge is also authorized for offenses under Article 87 for missing movement.

16.  Army Regulation 635-200, in effect at the time, 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 includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  The request could be submitted at any time after charges had 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.

	b.  Chapter 3, 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.  Chapter 3, 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.

17.  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 ABCMR.  The regulation provides 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 contends his under other than honorable conditions discharge should be upgraded because he was coerced into submitting his request for discharge and, as such, the separation authority and narrative reason for his discharge should also be corrected.

2.  Records show the applicant arrived in Germany in July 1989; he requested a change to his overseas tour to "with dependents"; his request was approved in January 1990 and his DEROS was adjusted; and he voluntarily extended his 
3-year enlistment to meet the service remaining requirements for a "with dependents" tour.  Thus, records refute the applicant's contention that he was required to extend his overseas tour because his wife arrived in Germany unannounced with their child on 11 September 1990.

3.  The applicant's contentions regarding the comments and actions by his wife (i.e., with respect to an altercation in December 1990 and that she wrote bad checks against his bank account) are not in dispute.  However, they were not the basis for the applicant's request for discharge.

4.  The applicant acknowledged in his request for discharge that his unit would not authorize an extension of his leave.  His contention that he then contacted an officer who told him to take care of his personal problems is not in dispute.  However, there is no evidence the applicant's request for extension of leave was approved or that he sought assistance at a military installation to request a compassionate reassignment or hardship discharge from the Army.  In fact, records show the applicant was AWOL from 30 August through 9 October 1991.

5.  Despite the absence of a DD Form 458 in the applicant's military personnel records his records show the applicant's request for separation for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge outweigh his overall record.  Considering all the facts of the case, the characterization of service directed was appropriate and equitable.  In addition, the authority and narrative reason were proper and correct.


6.  The applicant had 41 days of lost time, he completed less than 2 years and 7 months of his 3-year and 5-month enlistment, and he was reduced to 
PV1/(E-1).  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

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

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)                                         AR20110004152



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ABCMR Record of Proceedings (cont)                                         AR20110004152



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