IN THE CASE OF:	  

		BOARD DATE:  16 February 2012

		DOCKET NUMBER:  AR20110014159 


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 reconsideration of the Army Board for Correction of Military Records (ABCMR) decision denying his request to upgrade his discharge to a general discharge.

2.  The applicant states his mother was physically abused by his former stepfather.  He requested emergency leave, but was turned down because he had to attend field training.  He now realizes he should have gone to the chaplain or his commander concerning the situation.  He had to take care of his helpless mother and 7-year old sister, who was later physically molested by his former stepfather.  He had to make sure they were in a safe place and find a way to get the law involved.  He was taking care of his family and going to local law enforcement to have them assist his mother with her domestic violence issues.  He states he tried to surrender at MacDill Air Force Base but it took some time because they were an Air Force base and didn't know who to contact in the Army regarding his status.

3.  The applicant provides:

* statements from his mother and sister
* numerous legal documents showing the history of domestic violence


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100010942 on 21 September 2010.

2.  The statements and legal documents he submitted are new evidence which require consideration by the ABCMR.

3.  The applicant's military record shows he enlisted in the Regular Army on
14 February 1996.  He was awarded and served in military occupational specialty (MOS) 35Q (Avionic Flight Systems Repairer).

4.  On 25 February 1998, court-martial charges were preferred against him for being absent without leave (AWOL) during the period 21 November 1997 to 
20 February 1998.

5.  On 25 February 1998, after consulting with legal counsel, the applicant voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Department of Veterans Affairs (VA) benefits.  He elected to submit a statement in his own behalf.

6.  In his statement he indicated:

* he met Army standards and that he was a professional
* his problems began after he married and his wife began to be unfaithful to him while he was stationed in Korea
* his wife blamed the military for their problems causing him to go home to work things out; however, things only got worse

7.  On 17 June 1998, the appropriate authority approved the applicant’s request and directed he receive an under other than honorable conditions discharge.  

8.  On 12 August 1998, the applicant was discharged, in pay grade E-1, under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with an under other than honorable conditions discharge.  He had completed a total of 2 years, 2 months, and 28 days of active service and he had 89 days of time lost.

9.  In a statement submitted by his mother, dated 23 August 2010, she describes the abuse she suffered from her husband (applicant's stepfather).  She and her daughter were abandoned without money, transportation, and a place to live.  Her son (the applicant) left the Army without permission to help them.  He suggested that they all attend family counseling.  Her son provided financial support for them to prevent them from being evicted.  Five months later her husband beat her again.

10.  In a statement submitted by his sister, dated 10 September 2010, she states the events that led to her brother leaving the Army were a bit hazy as she was very young and her mother tried to shelter her from any emotional trauma that divorce and subsequent events could cause.  Before her parents were divorced, she doesn't remember her father being abusive towards her or her brother.  After the divorce and her father receiving visitation rights, her father sexually abused her.  For years after her parents' divorce, she knew nothing of the physical and sexual abuse her mother endured at the hands of her father.  All of the events happened when she was too young to comprehend the severity of her brother's actions of going AWOL to help them.  She now realizes the way he went about helping them was not in his best interest.  

11.  The legal documents he provided show the following series of events:

* 9 April 1998 - his stepfather was arrested for battery (domestic violence)
* 10 April 1998 - his mother was notified his stepfather was released
* 12 July 1998 - a protection order was issued against his stepfather
* 21 July 1998 - his mother was notified of the disposition of the battery charge
* 27 August 1998 - his mother was notified his stepfather was accepted in the rehabilitation phase of the Domestic Violence Intervention Program
* 9 September 1998 - his sister disclosed her father fondled her during visitation
* 24 March 2000 - the parents were divorced with his mother being awarded custody of his sister

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally given an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  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 have been clearly inappropriate.  

	c.  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.  He voluntarily requested discharge and admitted guilt to the offense for which he was charged.  He also acknowledged that he could receive an under other than honorable conditions discharge and that he may be ineligible for many or all Army benefits.  He also acknowledged that he had been advised and he understood he may be ineligible for many or all benefits administered by the VA.

2.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  He has provided no evidence he sought assistance through his chain of command for his family situation.  The statements from his mother and sister were noted.  However, it is also noted that his stepfather was arrested 2 months after he returned to the Army.  It appears that the abuse continued.  The abuse of his sister, while in of itself is serious, did not occur until after his discharge from the Army.  In addition, he raised a completely different issue when he submitted his statement with his request for discharge.

5.  In view of the above, there is an insufficient basis to upgrade his discharge to a general discharge or an honorable 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100010942, dated 21 September 2010.




      _______ _  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)                                         AR20110014159



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ABCMR Record of Proceedings (cont)                                         AR20110014159



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