IN THE CASE OF:
BOARD DATE: 1 May 2012
DOCKET NUMBER: AR20110022088
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 an upgrade of his general discharge to honorable.
2. The applicant states:
* he was having marital problems which caused him to be absent without leave (AWOL)
* his discharge is unjust compared to his record of service
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 8 March 1989 for a period of 4 years. He completed training and was awarded military occupational specialty 91A (medical specialist). He served in Southwest Asia from 12 October 1990 to 20 April 1991 and from 4 January 1993 to 4 March 1993. He attained the rank of specialist.
3. On 1 August 1994, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL (two specifications) from 12 May 1994 to 31 May 1994 and from 13 June 1994 to 8 July 1984.
4. On 1 September 1994, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph
14-12c, for misconduct (commission of serious offense). The unit commander cited his two AWOL periods.
5. On 9 September 1994, he consulted with counsel and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued. He also elected to submit a statement on his own behalf; however, his statement is not available.
6. On 21 September 1994, the separation authority approved the recommendation for discharge and directed the applicant's discharge under honorable conditions (a general discharge).
7. He was discharged under honorable conditions on 17 October 1994 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense). He completed a total of 5 years, 5 months, and 26 days of creditable active service with 46 days of lost time.
8. There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate.
10. Army Regulation 635-200, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he was AWOL due to marital problems. However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to being AWOL.
2. He contends his discharge is unjust compared to his record of service. However, the governing regulation states an individual separated by reason of misconduct would normally be furnished a discharge under other than honorable conditions; he received a general discharge.
3. His 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 were therefore appropriate considering all the facts of the case.
4. His record of service included one NJP for two AWOL periods and 46 days of lost time. As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. There is insufficient evidence to warrant 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 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.
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