IN THE CASE OF:	  

		BOARD DATE:  7 June 2012

		DOCKET NUMBER:  AR20110025041 


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.

2.  The applicant states the following were extenuating circumstances:

* he was just a kid – not mentally prepared for what happened
* his wife left him and took their daughter – he didn't see her for 17 years
* his mother was cheating on his father – his father would call in the middle of the night and threaten suicide
* he broke his leg and had to give up his dream of being a Ranger
* without any warning so he could fight it – he received legal notice terminating his parental rights
* he borrowed a buddy's car- it was stolen
* he had to take emergency leave to protect his younger brothers because of the marital strife between his parents
* while he was on leave his ex-wife took most of his personal property from his apartment – there was nothing he could do because her name was on the lease
* in the separation hearing, the court gave her his car even though he had made all the payments

3.  All of the above happened in just 5 or 6 months and they are just some of the things that happened.  He came from a happy home and was a happy teen.  He 


got married just before entering the Army.  The joy of being a parent was amazing.  Then in a matter of months his life was ripped apart.  He considers himself to be lucky to have survived.  He is not proud of his life but one of the things that he is most ashamed of was his absence without leave (AWOL) from the Army.  He had planned to be a career Soldier but he served only 1 1/2 years of a 3-year enlistment.  He still hasn't recovered.  Maybe an upgrade will give him an opportunity to regain some honor.

4.  The applicant provides a self-authored statement to support his request.

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 was a married, 19-year old high school graduate when he enlisted in the Regular Army on 1 October 1991.  His daughter was born on
3 January 1992.

3.  He completed basic and advanced individual training (BT/AIT) as an infantryman and airborne training.  He was awarded the Parachutist Badge on
29 January 1992, he was attached to a Ranger unit on 10 February, and he was advanced to pay grade E-2 on 1 April and to pay grade E-3 on 1 July 1992.  He was awarded the Expert Infantryman Badge (EIB) on 11 March 1993.

4.  The applicant's jump status was terminated on 1 May 1993 and on 4 June he was transferred to an infantry company.

5.  He was reported AWOL from 26 June 1993 to 18 September 1995.

6.  When charges were preferred for the AWOL offense the applicant consulted with counsel and 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 indicated he understood the elements of the charge against him and admitted he was guilty of at least one offense or of a lesser-included offense for which a punitive discharge was authorized.  He acknowledged he would receive a discharge under other than honorable conditions.  He also understood he would be deprived of many or all Army benefits and he might be ineligible for veterans benefits administered by the Department of Veterans Affairs (VA).  He stated he understood he could expect to encounter substantial prejudice in civilian life because of this discharge.

7.  The chain of command endorsed the applicant's request for discharge and recommended discharge under other than honorable conditions.  On 11 October 1995, the separation authority approved the applicant's request and directed his discharge under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge and reduction to private (PV1)/E-1.

8.  On 9 January 1996, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 2 years and 17 days of creditable active service.  It further shows he was awarded the National Defense Service Medal, Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) and Grenade Bars, EIB, and the Parachutist Badge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	a.  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.  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.

	b.  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.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  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's medical records are not contained in the available records and there is no way of knowing if a broken leg ended his chances of being a Ranger.  However, the termination of his jump status and his transfer to an infantry company do tend to support this contention.

2.  Nevertheless, the applicant clearly had the ability to function and succeed in the military environment and his current unsupported contentions do not mitigate his misconduct.

3.  Records show the applicant was 19 years of age at the time of his enlistment.  He successfully completed BT/AIT, airborne training in January 1992, and was awarded the EIB in March 1993.  He was nearly 21 years of age when he departed AWOL.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  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.  There is no indication that the request was made under coercion or duress.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110025041



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ABCMR Record of Proceedings (cont)                                         AR20110025041



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