IN THE CASE OF:	  

		BOARD DATE:	    19 June 2012

		DOCKET NUMBER:  AR20110024366 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he was shot in the left knee by a civilian in January 1990 and treated at Womack Army Medical Center, Fort Bragg, North Carolina.  

	a.  He served in the Persian Gulf War from 13 August 1990 to 1 April 1991.

	b.  He returned to Fort Bragg and learned that his spouse had neglected the family's finances.  He also encountered emotional issues with his wife and three children that caused him to leave his family.

	c.  He was arrested and jailed in North Carolina from December 1991 to July 1992; however, the charge was later dropped.  Law enforcement officials did not know he was a Soldier, so the U.S. Army was not notified.  As a result, the Army placed him in an absent without leave (AWOL) status.

	d.  He states that he was suffering from post-traumatic stress disorder (PTSD) and his physical and emotional state contributed to his AWOL status.  He adds that he just recently learned the exact character of his service.  

3.  The applicant provides a copy of an undated Department of Veterans Affairs (VA), Psycho-Social Assessment.


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 4 April 1989 for a period of 
6 years.  He was awarded military occupational specialty 63B (Light Wheeled Vehicle Mechanic).

3.  The applicant served in Saudi Arabia from 13 August 1990 to 1 April 1991.

4.  Court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, with the specification of absenting himself from his unit from 31 December 1991 to 12 July 1992.

5.  The applicant consulted with legal counsel and 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.  The applicant's request for discharge states he was not subjected to coercion with respect to his request.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions discharge.

	b.  He was also advised that he could submit statements if he desired in his own behalf.  He elected not to submit a statement with his request; however, he voluntarily declared that he was AWOL from the U.S. Army from 31 December 1991 to 12 July 1992.


	c.  The applicant and his counsel placed their signatures on the document.

6.  The applicant's immediate and intermediate commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.

7.  The separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 25 August 1992 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.

	a.  He completed 2 years, 10 months, and 11 days of active service.

	b.  He had 194 days of time lost under Title 10, U.S. Code, section 972.

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

10.  The applicant provides a copy of an undated Department of Veterans Affairs (VA), Psycho-Social Assessment.  It shows the applicant told the medical official he received medical treatment as a result of an injury (shrapnel embedded in his leg) while he was deployed.  In addition, his first marriage ended while he was in the military because "she was unfaithful and had difficulty with the military lifestyle."  It also shows he was diagnosed with PTSD; polysubstance dependence early full remission; carpel tunnel, gunshot wound to the leg; marital stress, and long-term drug usage.

11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who 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, at the time the applicant was discharged an under other than honorable conditions discharge was 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to a general discharge because his physical and emotional state at the time contributed to his AWOL status and he just recently learned of the exact character of his service.

2.  Records show the applicant was charged under the UCMJ, Article 86, for being AWOL from 31 December 1991 to 12 July 1992.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  

	a.  His request for discharge shows he acknowledged he understood that he might be discharged under other than honorable conditions.  Thus, the applicant's contention that he just recently learned of the character of his service is dubious.

	b.  His request for discharge shows all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge action outweighs his overall record of service during the period under review.

	c.  Considering all of the facts of the case his characterization of service was appropriate and equitable.

4.  The applicant elected to request discharge in lieu of being court-martialed, he had 194 days of lost time (i.e., 6 months and 14 days), and he completed only about one-half of his 6-year enlistment obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to a general discharge. 

5.  In view of the foregoing, there is no basis for granting the 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)                                         AR20110024366



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ABCMR Record of Proceedings (cont)                                         AR20110024366



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