IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110020458 


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 discharge to a general discharge.

2.  The applicant states:

	a.  He came into the Army at a young age.  He broke his leg in two places while in basic combat training (BCT).  He was on medication and in pain but he still completed BCT.  He was in serious pain when he went to Fort Lee, VA, for his advanced individual training (AIT).  He went to therapy every day which caused more pain.  He started drinking and taking more pain pills because of the pain.  He was young and he was not able to cope with this serious situation and his drinking and drug use got way out of hand.  He went absent without leave (AWOL) a few times and he could not get himself back on track.

	b.  He tried to stay a productive Soldier and believes he could have been if he had been given the help he was refused.  The prescribed medication had him in a catatonic and euphoric state and he went home to see his personal doctor.  He was not happy with the medical care he received at Fort Lee, VA.

3.  The applicant provides no additional evidence.


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 enlisted in the Regular Army on 30 April 1979 at 18 years of age and he completed BCT at Fort Jackson, SC.  He was assigned to AIT at Fort Lee on 22 June 1979.

3.  He was reported AWOL and/or dropped from the rolls (DFR) of his assigned unit as follows:

* 18 July - 27 August 1979
* 28 - 29 August 1979
* 30 August 1979 - 9 March 1980
* 7 April - 21 October 1980
* 23 October 1980 - 14 May 1981

4.  On 18 May 1981, he was returned to military control at Fort Dix, NJ.  His record contains a Personnel Control Facility (PCF) Information Sheet, dated 19 May 1981, wherein it shows the applicant was asked why he went AWOL.  He stated he was AWOL from Fort Lee and Fort Dix because of family problems.  His children's mother refused to allow him or anyone in his family to see his children and he went home to straighten out the problem, but he was not able to.  He also stated he wanted to stay in the Army.

5.  On 18 May 1981, court-martial charges were preferred against him for being AWOL from:

* 30 August 1979 - 10 March 1980
* 7 April - 22 October 1980
* 23 October 1980 - 15 May 1981


6.  On 29 May 1981, he was reported AWOL from the PCF, Fort Dix, and on 1 June 1981 he was returned to military control at Fort Dix.  The PCF Information Sheet was updated with the remark that on 3 June 1981 the applicant changed his mind and stated he wanted to get out of the Army.

7.  On 2 June 1981, additional court-martial charges were preferred against him for being AWOL from 29 May to 1 June 1981.

8.  On 3 June 1981, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial.  He was advised that his offenses were punishable by a bad conduct discharge or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights available to him.

9.  Following consultation with 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.  He acknowledged he understood if the discharge request were approved, he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also 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, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

10.  On 15 June 1981, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 18 June 1981, the applicant was discharged accordingly.  He completed 4 months and 11 days of creditable active service with 632 days (1 year, 8 months, and 27 days) of time lost due to AWOL.

11.  The DD Form 214 he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as "under conditions other than honorable."

12.  His available medical records do not show he was ever treated for a broken leg while on active duty.


13.  There is no evidence in his record that shows he requested leave or asked his commander for assistance in resolving family issues.

14.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that 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.

16.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  There is no evidence in his records and he has not provided any evidence that shows he sustained a broken leg while on active duty or that he was prescribed medication for pain as a result.  

3.  The applicant contends his discharge should be upgraded because he was young at the time of his service.  Records show that he was almost 21 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.


4.  His record of service shows he went AWOL on numerous occasions and he had almost 1 year and 9 months of time lost.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

5.  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)                                         AR20110020458



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ABCMR Record of Proceedings (cont)                                         AR20110020458



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