BOARD DATE:	  6 December 2011

		DOCKET NUMBER:  AR20110011342 


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 upgrade of his discharge to honorable.

2.  The applicant states he was absent without leave (AWOL) because his father was ill in a Mexican jail.  His mother had no one to help her with money and legal problems.  He tried repeatedly to call the number on his leave papers to get an extension, but never got through.  He also tried to check-in near his home at Fort Bliss, Texas, but was not allowed to do so.  After his father was released from jail he returned to duty.  His appointed military attorney never met with him until he came with the discharge papers for him to sign.  The attorney said that if he didn't accept the discharge he would go to jail.  The lawyer didn't fight for him and he never got to tell his story.  

3.  The applicant provides no additional documents to support his request.

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 27 November 1990.  He completed training as a medical specialist.

3.  He served in Korea for a year where he did well, was advanced to private first class (E-3), and was awarded two Army Achievement Medals.  While on leave during the process of transferring to Fort Lewis, Washington he went AWOL.

4.  On 16 November 1992, charges were preferred against the applicant for AWOL from 30 May through 17 September 1992.  

5.  On 25 November 1992, having consulted with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated he understood the elements of the charge against him and admitted he was guilty of at least one offense or a lesser-included offense for which a punitive discharge was authorized.  He also acknowledged he would receive a discharge under other than honorable conditions.  He also understood he would be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Department of Veterans Affairs.  He stated he understood he could expect to encounter substantial prejudice in civilian life because of this discharge.

6.  He also submitted a personal statement that apparently was professionally prepared for his signature.  In that letter he asserted:

	a.  he had made several unsuccessful attempts to contact his unit before his leave expired;

	b.  he had also sought help through his old unit, the American Red Cross, and the emergency telephone number listed on his orders;

	c.  with his father was in poor health in a Mexican jail and his mother needing financial help and aid in making legal decisions, he had made a conscious decision that assisting his family was more important than returning to his unit; 

   d.  he deeply regretted not making more effort to contact the military;


   
   e.  as soon as his father's health improved he reported to his unit;
   
   f.  he submitted a copy and a translation of the Mexican legal documents showing that his father was released from the jail because of his illness (he was essentially paroled). on 14 July 1992 and typed, sworn statements from his father, mother, sister, a neighbor, and another person to show that he had been needed at home and how he had constructively spent the time;
   
   g.  he submitted a statement from his then current Army supervisor to the effect that he was a conscientious, loyal, and productive worker; and
   
   h.  he submitted copies of the recommendations/orders for his two Army Achievement Medals and he asked for a general discharge.
   
7.  On 2 December 1992, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service - in lieu of trial by court-martial.  He directed an under other than honorable conditions discharge and reduction to private (PV1)/E-1.

8.  On 11 December 1992, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 1 year, 9 months, and
5 days of creditable active service with 108 days of time lost.

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

	a.  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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows that the applicant's father was indeed imprisoned in a Mexican jail and was released because he was ill.  It also indicates that the applicant did indeed stay home to help.

2.  However, there is no supporting evidence to show that the applicant made any effort to contact the Army to explain his absence and/or gain permission to stay away.

3.  The professional appearance of the applicant's appeal for a general discharge tends to cast doubt on his assertion that his assigned attorney made no effort to help him and leads to the conclusion that his claims of trying to contact the Army while AWOL may be exaggerated.

4.  His remaining AWOL for more that 90 days suggests that he wanted to ensure that he would be discharged rather than punished and returned to duty.

5.  His voluntary request for discharge, even after appropriate consultation with a military lawyer, indicates he wished to avoid a trial by court-martial and the punitive discharge he could have received.

6.  The administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

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)                                         AR20110011342





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ABCMR Record of Proceedings (cont)                                         AR20110011342



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