IN THE CASE OF:	  

		BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110005633 


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:

The applicant defers his request and statement to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge under other than honorable conditions to an honorable discharge.

2.  Counsel states the applicant's overall service and post-service conduct and accomplishments support an equitable upgrade of the applicant's discharge to a fully honorable discharge.  Counsel also states:

* the applicant previously served and excelled in the U.S. Marine Corps Reserve (USMCR) as well as the Florida Army National Guard (FLARNG)
* he achieved accelerated promotions and completed specialized training but he injured his shoulder while rappelling
* despite his injuries, he completed the Special Forces Qualification Course
* he also received multiple awards and decorations
* he enlisted in the Regular Army (RA) but aggravated his injury
* he was ultimately issued a medical profile and underwent a medical evaluation board (MEB) that referred him to a physical evaluation board (PEB)
* it took too long to process his medical paperwork so he left in an absent without leave (AWOL) status
* he surrendered to military authorities and elected a discharge in lieu of trial by a court-martial
* since his discharge, he worked as a locksmith and broker with 73 licenses
* he also completed medical school and he became a doctor, but he did not pass his foreign medical licensing board examination
* he worked in the construction field and started his own company specializing in remodeling homes for veterans
* he also started a business that teaches students the basics of construction in Florida
* he has been married for 27 years and is a father and a productive member of the community
* various individuals attest to his character and admirable post-service conduct
* the AWOL incident – an isolated incident – was the only disciplinary infraction he committed
* he admitted guilt and regretted his offense

3.  Counsel provides 25 enclosures titled Tab A through Tab Y.

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.  Having prior service in the USMCR from 13 April 1979 to 16 April 1981 and the FLARNG from 17 April 1981 to 12 April 1985, the applicant's records show he enlisted in the RA on 30 October 1986.  He was assigned to the 9th Battalion, 2nd Infantry, Fort Benning, GA, for completion of one-station unit training.

3.  On 25 November 1986, he complained of chronic shoulder pain related to his previous shoulder dislocation sustained on 21 May 1984.  The attending physician noted:

	a.  The applicant's first dislocation occurred while he was a civilian, the second dislocation occurred while performing his 2-week Reserve training.  After several months of failed conservative therapy, he underwent a left shoulder repair.  He continued to have pain for about a year, but there was no documented dislocation.

	b.  During the third week of RA basic training he began complaining of left shoulder pain, but, again, there was no documented evidence of recurrent dislocation.  He was noted to have mild acromioclavicular joint arthritis.

	c.  The physician opined that the applicant should not continue on active duty and that he did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness) due to chronic shoulder pain.  He was referred to the Physical Disability Evaluation System.

4.  On or about 26 November 1986, an MEB convened at Fort Benning, GA.  After consideration of clinical records, laboratory findings, and physical evaluations, the MEB diagnosed the applicant as having the medically unacceptable conditions of left shoulder repair (existed prior to service) and mild acromioclavicular joint arthritis.  The MEB recommended his referral to a PEB.  He agreed with the MEB's findings and recommendations and indicated he did not desire to continue on active duty.  However, there is no indication his MEB was approved.

5.  On 18 December 1986, he departed his training unit on ordinary leave, but he did not return.  He was reported as AWOL on 3 January 1987 and he was dropped from the Army rolls as a deserter on 2 February 1987.  He ultimately surrendered to military authorities at Fort Knox, KY, on 24 March 1987.

6.  On 27 March 1987, court-martial charges were preferred against him for one specification of being AWOL from 3 January to 24 March 1987.

7.  On 30 March 1987, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under the Uniform Code of Military Justice (UCMJ), the possible effects of discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial were approved, and of the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

8.  In his request for discharge, he indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood 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  He also stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.

9.  On 1 April 1987, his immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.

10.  On 7 April 1987, the separation authority approved the applicant's request for discharge for the good of the service in lieu of court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 1 May 1987, the applicant was discharged accordingly.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  This form shows he completed 3 months and 11 days of creditable active service during this period and he had 80 days of lost time.  He had previously completed 5 months and 21 days of prior active service.

12.  On 23 June 1993, the Army Discharge Review Board denied his petition for an upgrade of the discharge.

13.  Counsel submits:

	a.  an honor certificate, dated 23 October 1979, showing the applicant completed the Aviation Machinist's Mate Course and a letter of commendation;

	b.  the applicant's enlistment contract in the ARNG as well his honorable report of separation from the ARNG;

	c.  enlisted evaluation reports covering the periods December 1982 through December 1983 and March 1983 through August 1983 showing he was rated among the best;

	d.  multiple certificates of training or achievement showing he completed the Basic Airborne Course, Radio Operator Course, and Basic Noncommissioned Officer Course (documented on a service school academic evaluation report);

	e.  chronological records of medical care related to his shoulder injury;

	f.  a letter of employment with the Jupiter, FL, Police Department;

	g.  a certificate showing he met the requirements for a Doctor of Medicine degree and an enrollment letter of recommendation together with college transcripts;

	h.  multiple certificates showing completion of various medical training as well as multiple business licenses and/or receipts, bills, and other documents; and

	i.  multiple character reference letters and/or letters of support attesting to his professional work, outstanding character, morality, friendship, and dependability.

14.  Army Regulation 635-200 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.  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.

15.  Army Regulation 635-200, 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.

16.  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.

17.  According to the Manual of Courts-Martial, the maximum punishment for violating Article 86 (absence from unit, organization, or duty for more than 30 days) is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  His records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  His substantial post-academic and professional achievements as well as his letters of support are noted; however, they are not sufficiently mitigating in granting him the requested relief.  In any case, his post-service achievements are not in question here, his period of AWOL is.  There were many other legitimate ways he could have addressed any issues at the time had he chosen to use them, but he voluntarily chose to become a deserter.  Upon his return, he faced a court-martial that could have resulted in a dishonorable discharge, confinement for 1 year, and forfeiture of all pay and allowances.   Instead, he chose to request a voluntary discharge.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

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)                                         AR20110005633



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110005633



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1