IN THE CASE OF:	  

		BOARD DATE:  14 February 2012

		DOCKET NUMBER:  AR20110015734 


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 an honorable discharge (HD).

2.  The applicant states:

	a.  he was young and immature during his military service;

	b.  he did not request any leave during the Thanksgiving through New Year's Day holidays, however, he requested leave in January 1990 when his daughter became very ill and was hospitalized;

   c. after he was told he could not take leave because his unit was going on a field exercise, his poor judgment and immaturity contributed to his decision to depart absent without leave (AWOL);
   
   d.  he was angry and felt his superiors did not care about his 3-year old daughter because their families were with them and, because he did not take any holiday leave, his request should have been granted;
   
   e. he later learned his leave could have been granted if he had gone through the Red-Cross, but no one told him at the time;
   
   f.  he enjoyed his service in the Army; holds fast to its training and traditions; teaches them to his children; still drives a truck like he did in the Army; remains in good physical shape; wishes he could reenlist; and
   g.  he gave his life to the Lord Jesus Christ eleven years ago, pastors two churches, and prays the Board would be sensitive to know we all grow up at different times.

3.  The applicant provides a self-authored statement.

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 military record shows he enlisted in the Regular Army on 12 November 1987.  He was trained in and served in military occupational specialties 88M (Motor Transport Operator).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to specialist (SPC) on 12 January 1990.  Item 3 (Record of Assignments) shows he was reported AWOL on 2 February 1990 and dropped from the rolls on 4 March 1990.

4.  The applicant's military record contains a DA Form 4187 (Personnel Action) dated 12 July 1990.  It shows he was apprehended by civilian authorities in Saginaw, Michigan on 8 July 1990 and was immediately returned to military control.

5.  On 12 July 1990, a DA Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 2 February until on or about 8 July 1990.

6.  On 12 July 1990, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal 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.

7.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued an undesirable discharge.

8.  On 27 July 1990, the separation authority approved the applicant's request for discharge and directed his discharge under the provisions of Army Regulation 635-200, chapter 10, in the lowest enlisted grade with an UOTHC discharge.

9.  On 12 September 1990, the applicant was discharged accordingly.  He completed 2 years, 4 months, and 25 days of net active service with 156 days of time lost.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

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

	a.  Chapter 10 states 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 of 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 applicant contends his UOTHC discharge should be upgraded because he was a young and immature when he committed the offenses that led to his discharge and because of his post service achievements.  While his post service achievements are noted and were commendable; these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL for 156 days.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His service did not support a GD or HD at the time of his discharge, nor would it be appropriate to upgrade his discharge now.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110015734





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ABCMR Record of Proceedings (cont)                                         AR20110015734



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