IN THE CASE OF:	  

		BOARD DATE:	  15 December 2012

		DOCKET NUMBER:  AR20110011666 


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 under other than honorable conditions (UOTHC) discharge to a general or fully honorable discharge.

2.  He states that he would like his discharge upgraded so he can obtain military benefits because he is a war veteran.  He feels that he served his country even though he went absent without leave (AWOL).  He suffered from Post Traumatic Stress Disorder (PTSD) because he received divorce papers while serving in Saudi Arabia for Desert Storm.  He served all of his time with the exception of 6 months of a 4-year contract.  

3.  He provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and Decree of Divorce. 

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’s military records show he enlisted in the Regular Army, in pay grade E-1, on 27 December 1989, for 4 years.  He completed training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).  He served in Germany from 5 May 1990 through 5 August 1991.  He was promoted to pay grade E-4 on 2 December 1991. 

3.  On 20 August 1992, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL from 16 June 1972 through 7 July 1992.  He was reduced to pay grade E-3 on the same day.

4.  He was reported AWOL on 30 October 1992 and dropped from the rolls on 30 November 1992.  He was returned to military control on 4 May 1993.

5.  On 8 May 1993, a DD Form 458 (Charge Sheet) was prepared by the Commander, Battery B, Personnel and Support Battalion, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK.  He was charged with one specification of being AWOL from 30 October 1992 through 4 May 1983.

6.  On 13 May 1993, after consulting 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 court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He admitted that he was guilty of the charge against him and had no desire for further military service.  He also acknowledged that he could be discharged under conditions other than honorable and furnished a UOTHC discharge; as a result of the issuance of such a discharge he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Department of Veterans Administration (VA).  He waived his rights and elected to submit a statement in his own behalf.

7.  On 11 June 1993, the separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of a UOTHC discharge and reduction to pay grade E-1.

8.  He was discharged accordingly on 30 June 1993 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial. He was credited with completion of 3 years, 5 months, and 12 days of net active service and 199 days of time lost.

9.  He provided a copy of his Decree of Divorce which shows he was issued a divorce on 12 June 1991.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 specified a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier’s overall record.

12.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant has submitted no evidence other than his contention that he was suffering from PTSD during his period of service as a result of receiving his divorce papers and this caused him to go AWOL.

2.  The evidence of record shows on 20 August 1992 he accepted NJP for being AWOL from 16 June 1992 through 7 July 1992 and was reduced to pay grade 
E-3.  On 4 May 1993 he was charged with being AWOL from 30 October 1992 through 4 May 1993.  Upon receipt of the charges he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the offense.  He also acknowledged that he could be discharged UOTHC and that he could be ineligible for many or all benefits administered by the VA.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  

3.  He provided no sufficient evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct in 1992 diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  The applicant's desire to have his discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

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)                                         AR20110011666





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ABCMR Record of Proceedings (cont)                                         AR20110011666



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