IN THE CASE OF:	  

		BOARD DATE:	    22 May 2012

		DOCKET NUMBER:  AR20110022457 


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 discharge under other than honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that his being charged as being absent without leave (AWOL) was a simple clerical error and should not have occurred.  He further states that he was never in any trouble and his record will bear out that he did not have a track record that would warrant a discharge under other than honorable conditions.  

3.  The applicant provides a continuation sheet with his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of a memorandum from the hospital to his commander recommending that he be granted convalescent leave, 10 third-party letters of support, and copies of 10 certificates and awards.

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 29 April 1993 for a period of 3 years, training under the airborne infantry training option, and assignment to the 82d Airborne Division.  He completed all of his training at Fort Benning, Georgia and was transferred to Fort Bragg, North Carolina for assignment to the 4th Battalion, 325th Parachute Infantry Regiment.  He was advanced to the rank and pay grade of private first class (PFC) E-3 on 1 February 1994.

3.  On 16 March 1995 the Chief, Patient Administration Division at Womack Army Medical Center authored a memorandum to the applicant’s unit commander recommending that the applicant be granted 30 days of convalescent leave.  

4.  On the same day, 16 March 1995, the applicant departed AWOL and remained absent in desertion until he surrendered to military authorities at Fort Bragg on 18 April 1995 and was transferred to Fort Knox, Kentucky where charges were preferred against him on 26 April 1995. 

5.  On the same day, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  

6.  The applicant also elected to submit a statement in his own behalf whereas he stated that after receiving his second ankle reconstruction he thought he was supposed to be going on convalescent leave from the hospital so he went to Texas with his wife without going through his unit.  He also stated that he was contacted by his unit the next day about his situation and was told to send the paperwork regarding the convalescent leave; however, he did not have the form.  He went on to state that the first sergeant told him it was OK but to call in every other day.   He further states that after 3 weeks of being told it was OK he was told he was AWOL.   He further stated that he had an excellent record and did not deserve a discharge under other than honorable conditions.


7.  The appropriate authority approved his request for discharge on 23 September 1995 and directed his discharge under other than honorable conditions.

8.  On 19 October 1995, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions character of service.  He had served 2 years, 4 months and 19 days of active service and had 30 days of lost time due to AWOL.  

9.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's     15-year statute of limitations.

10.  A review of his records shows that he had a good record of performance and his record is void of any derogatory information.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of lesser-included offenses which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.

13.  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.  

14.  Army Regulation 635-200, chapter 5, provides, in pertinent part, that the Secretary of the Army may approve the discharge of Soldiers for the convenience of the government.  An honorable, general, or uncharacterized discharge may be directed under this separation authority.  A separation code of “JFF” denoted separation under “Secretarial Authority.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by  court-martial was administratively correct and in conformance with applicable regulations.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  However, the available evidence indicates that the hospital provided the applicant with a memorandum recommending that he be placed on convalescent leave that was supposed to be taken to his commander for processing and instead, the applicant presumed that it was his authorization to take the 30 days of convalescent leave without going through his company.

4.  Notwithstanding that the applicant took the convalescent leave without proper prior approval, there appears to be no reason to believe that had he properly presented the memorandum to his commander that his leave would not have been approved.  The applicant was serving in the rank of private first class at the time and it is not unreasonable to believe that he made a mistake and misinterpreted his instructions at the time.

5.  In any event, he would have been granted the convalescent leave and nothing would have been said if he had simply turned the form in to the commander at the time.  However, for reasons that are not explained in the available records, charges were preferred and it appears that the applicant accepted responsibility for his mistake and submitted his request for discharge.

6.  However, his record shows no derogatory information and it appears that his misunderstanding of the situation at the time was the only blemish on his otherwise excellent record.  Therefore, it appears that as a matter of equity that his service warrants an upgrade to a fully honorable discharge under Secretarial Authority with restoration of his rank to PFC.  

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by  issuing him an Honorable Discharge Certificate and a new DD Form 214 (Certificate of Release or Discharge from Active Duty) showing that he was discharged with a fully honorably discharge under the provisions of Army Regulation 635-200, chapter 5, due to Secretarial Authority, in the rank of private first class, E-3, and assigning him a separation code of “JFF.”




      __________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)                                         AR20110022457





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ABCMR Record of Proceedings (cont)                                         AR20110022457



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