IN THE CASE OF:	  

		BOARD DATE:	    27 March 2012

		DOCKET NUMBER:  AR20110018495 


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 general discharge.

2.  The applicant states he had asked three times for an extension of his leave due to a new baby and the mother experiencing complications.  He further contends that he had non-diagnosed bi-polar and schizoaffective disorders.

3.  The applicant provides the following documents:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Four letters of support, dated in 2011
* Commissioning as a Kentucky Colonel, dated 9 November 2010
* Six Certificates of Achievement, dated between 1979 and 1987
* A Certificate of Appreciation for the period 23 September 1979 to
16 February 1981
* Diploma, U.S. Army Primary Noncommissioned Officer (NCO) Course, dated 19 December 1980
* Diploma, U.S. Army Basic NCO Course, dated 5 February 1982
* Diploma, U.S. Army Recruiting and Retention School, dated April 1985
* Certificate of Training, U.S. Army air Assault School, dated 16 October 1979
* Certificate of Training, Jungle Warfare Training Course, dated 31 January 1981
* Certificate of Training, U.S. Air Force, Airlift of Hazardous Materials, dated 27 January 1984
* Certificate of Training, U.S. Army, Unit Armorer Course, dated August 1984
* Certificate of Training, U.S. Army, Motorcycle Rider's Safety Course, undated

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.  On 19 June 1979, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3. Records show the following duty assignments:

	a.  Infantryman with the 187th Infantry Battalion, Fort Campbell, KY from 1979 to 1981;

	b.  Infantryman with the 2nd Battalion, 15th Infantry Regiment, located in the Federal Republic of Germany (FRG) from 1981 to 1983;

	c.  Infantryman with the 503rd Infantry Regiment at Fort Campbell in 1983;

	d.  Infantryman with the 187th Infantry Battalion at Fort Campbell from 1983 to 1985; and

	e.  Recruiter with the Recruiting Battalion located in Kalamazoo, MI from 1985 to 1988.

4.  On 2 June 1988, the applicant, while serving as a staff sergeant (SSG)/E-6 departed Kalamazoo for duty in the FRG.

5.  On 8 July 1988, the applicant was absent without leave (AWOL).  He was returned to military control on or about 7 August 1989 (395 days).

6.  On 10 August 1989, charges were preferred against the applicant under the Uniform Code of Military Justice for being AWOL.

7.  On 10 August 1989, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.

8.  In his request for discharge, the applicant indicated that he understood that by requesting a discharge he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 29 August 1989, the separation authority approved the applicant’s request for discharge and directed that he be issued a UOTHC discharge.  On 
7 November 1989, the applicant was discharged accordingly.  He had completed a total of 9 years, 3 months, and 20 days of creditable active duty service and he had 395 days of time lost due to being AWOL.

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

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for being AWOL more than 30 days is a dishonorable discharge and confinement for 1 year.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

13.  The four letters of support, provided by the applicant were written by his pastor, physician, neighbor, and an employee:

	a.  On 27 June, 2011, his pastor essentially states the applicant accepted the Christian faith in the 1990's and he has become an active member of the church.  He has grown in his faith and in character.  He is a good citizen and family man and asks that his discharge be considered for an upgrade.

	b.  On 9 August 2011, the applicant's physician essentially states the applicant is currently under his care and is being treated for a diagnosed schizoaffective disorder and bipolar disorder.  The onset of these conditions probably goes back to age 20.

	c.  On 18 August 2011, the applicant's neighbor essentially states that he has known the applicant for a few years and has found him to be an upstanding citizen, a very good neighbor, and a dependable friend.  He has been honest and trustworthy.  He has shared the mistakes of his past including his bad decisions resulting in his discharge from active duty.  Those decisions were made during a time when he was under great stress and a failing marriage.  He had not been diagnosed at the time with a stress related illness.  He appreciates the seriousness of those earlier decisions and he is now on medication.

	d.  In an undated letter a Soldier that worked for the applicant states that he gives the applicant his highest endorsement and recommendation.  He states he has known the applicant since 1984 while on active duty with the 101st Airborne Division.  The applicant had provided unprecedented leadership and had displayed superb team leader skills, disciplined execution of all missions and tasks, outstanding technical knowledge, and a desire to support others.  He believes the applicant ranks among the top one percent of all Soldiers he has worked with in the past 30 years of Government service.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded to a general discharge because he asked for an extension of his leave on three separate occasions.  He further contends that he had undiagnosed bi-polar and schizoaffective disorders.

2.  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.

3.  There is no available evidence showing the applicant suffered from any medical condition that prevented him from performing his military duties.  In fact, the available evidence clearly shows that not only was he able to complete training and perform his duties he was able to do it well enough to be promoted to SSG.

4.  The applicant's lengthy period of lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20110018495



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ABCMR Record of Proceedings (cont)                                         AR20110018495



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