IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110014654 


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 under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  The applicant states that although he was married the Army sent him overseas without his family.  He tried more than 2 years to either bring his family overseas or get reassigned state-side; but he was consistently told no.  He made a terrible choice in handling his family separation situation.  

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), 12 documents related to his request for his family to join him in Germany and/or for reassignment, and 5 pages from his Official Military Personnel File.

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 record shows the applicant was married and had twin sons, age 4, prior to enlistment.

3.  He enlisted in the Regular Army, on 14 April 1983, and completed training as a Light Wheeled Vehicle Mechanic.  His first duty assignment was Germany, with a reporting date of 2 October 1983.

4.  Documents in the available record show that while in Germany the applicant's wife started having significant problems coping with their separation and the children's behavioral problems.  The applicant attempted to alleviate the problem by requesting that his assignment period be shorten, his family be allowed to join him in Germany, and/or reassignment state-side.  His family relocation and compassionate reassignment requests were denied; however, his assignment duration was shortened to that of an unaccompanied tour of duty.

5.  The applicant completed his tour in Germany on 22 August 1985 and was reassigned to Fort Benning, Georgia with award of the Good Conduct Medal in April 1986.  On 19 February 1987, he reenlisted and completed additional training as a petroleum supply specialist.

6.  A 3 May 1989, Criminal Investigative Division report shows the applicant was under investigation for larceny, forgery, conspiracy to commit theft by deception, and conspiracy to commit larceny.  It was reported he and another Soldier conspired to falsely order items from the civilian company the applicant was working for in order for him to receive a commission only to return or cancel the order.  When this plan did not result in the desired commission the applicant stole checks from the other person involved, forged his name, and cashed the checks at the Base Exchange.

7.  On 18 July 1989, the applicant was reported absent without leave (AWOL) and remained absent until he was apprehended by civilian authorities and returned to military control on 23 May 1991.

8.  The applicant's DD Form 214 shows he was discharged on 15 July 1991 under Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 6 years, 4 months, and 27 days of creditable service with 674 days of lost time and 40 days of excess leave.  He received a UOTHC characterization of service.

9.  The applicant's record does not contain any documentation related to his Chapter 10 discharge processing.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the policies and procedures for enlisted personnel separations.  It provides the following:

	a.  an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty; 

	b.  a general discharge is a separation under honorable conditions.  When authorized, it is issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;

	c.  a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier; 

	d.  paragraph 3-7c(7) specifically addresses the issuance of UOTHC discharges issued under the provisions of chapter 10; and 

	e.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  

11.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that although he was married the Army sent him overseas without his family.  He tried to bring his family overseas or get reassigned state-side; but he was consistently told no.  He made a terrible choice in handling his family separation situation.  

2.  The applicant's separation processing documents are unavailable, however, the available evidence show that he was under investigation for a number of offenses prior to his AWOL offense. 

3.  He has provided no evidence that his family separation situation contributed to his discharge action.  Even if so, he had many other legitimate avenues to assist him with his personal problems without committing the offenses for which he was discharged.

4.  The regulation governing the Board's operation requires that the discharge process must be presumed to have been in accordance with applicable law and regulation unless the applicant can provide evidence to overcome that presumption.  The applicant has failed to provide any evidence to overcome this presumption.

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)                                         AR20110014654



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ABCMR Record of Proceedings (cont)                                         AR20110014654



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