IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110011664 


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 an honorable discharge.

2.  The applicant states that he joined the Army after graduating from high school.  After completing training he was transferred to his first duty station only to find that his unit was in the Gulf War and he would be joining them in 10 days. 
He states that after receiving additional training he was deployed.  He states he completed his time and returned to his duty station.  A couple of months later he was married and his son was born.  Shortly thereafter he received orders transferring him to Fulda, Germany, on an unaccompanied tour and his wife was not happy that he was going without her.  He states he went to Germany and performed well despite being a hard adjustment and after a few months he started paperwork to bring his family to Germany.  He decided to surprise his wife and went home, only to find that she was having an affair and was pregnant by someone else, which was overwhelming.  He left and went into hiding because he could not handle the stress.  He states he regrets the decisions he made and asks that the Board grant him an upgrade of his discharge.

3.  The applicant provides a four-page statement explaining his application; two third-party statements; and a certificate of completion for Anger Management Training, dated 24 June 2008.


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 in Nashville, Tennessee, on 28 June 1990 for a period of 4 years, training as an administrative specialist, and assignment to Fort Campbell, Kentucky.  He completed one-station unit training at Fort Jackson, South Carolina, and was transferred to Fort Campbell on 26 October 1990.

3.  He deployed to Saudi Arabia from 15 December 1990 to 31 March 1991 and returned to Fort Campbell.  He got married on 31 August 1991 and his child was born on 23 December 1991.

4.  On 24 April 1992, he was transferred to Fulda, Germany, for assignment to an armored cavalry regiment as a clerk-typist.

5.  On 30 November 1992, he extended his enlistment for a period of 10 months for the purpose of completing a with-dependents tour.

6.  The applicant was absent without leave (AWOL) from 23 February to 1 March 1993.  The record is silent as to any punishment imposed for that offense.  He again was AWOL on 9 March 1993 and on 24 June 1994 he was arrested by civil authorities in Shepherdsville, Kentucky, for driving on an expired license.  He was incarcerated until 27 June 1994 when civil authorities determined he was a deserter and returned him to military control.

7.  A review of his official record failed to reveal any evidence to show the applicant sought the assistance of his chain of command for any personal problems he may have been experiencing.

8.  He was transferred to Fort Knox, Kentucky, where charges were preferred against him on 30 June 1994 for being AWOL from 9 March 1993 to 27 June 1994 (475 days).

9.  After consulting with defense counsel, the applicant submitted a request for 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.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charge against him or of a lesser-included offense which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

10.  The appropriate authority approved his request for discharge on 21 July 1994 and directed his discharge under other than honorable conditions.

11.  Accordingly, he was discharged in lieu of trial by court-martial under other than honorable conditions on 12 August 1994 under the provisions of Army Regulation 635-200, chapter 10.  He completed 2 years, 9 months, and 20 days of active service and had 484 days of lost time due to AWOL and civil confinement.  His records indicate he was divorced at the time of his discharge.

12.  On 28 May 1997, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  After considering the facts and circumstances in his case, the ADRB voted unanimously to deny his request on 14 May 1998.

13.  On 10 March 2005, he again applied to the ADRB for an upgrade of his discharge and he requested a personal appearance before that board.  He was scheduled for a personal appearance in Atlanta, Georgia, on 19 May 2006 and he failed to appear.  Accordingly, his close was closed without action.

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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charge against him.

3.  The applicant's contentions have been noted; however, given the extensive length of his absence and his overall record of service, his contentions are not sufficiently mitigating to warrant relief.  There is no evidence that he made any effort to solicit his chain of command for assistance and given the lack of mitigating circumstances at the time, his service simply did not rise to the level of even a general discharge given the length of his absence.  Accordingly, there appears to be no basis to grant 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 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)                                         AR20110011664



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ABCMR Record of Proceedings (cont)                                         AR20110011664



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