IN THE CASE OF:	  

		BOARD DATE:	  12 July 2012

		DOCKET NUMBER:  AR20120001786 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

	a.  He enlisted for an assignment to a COHORT (Cohesion, Operational, Readiness, and Training) unit at Fort Campbell, KY, for a period of not less than 36 months.  However, about 10 September 1986, he was told he had 5 days to out-process for an overseas assignment.  His contract was broken and he was told there was nothing he could do as he was going to Germany.  He served the Army well in his unit at Fort Campbell as evidenced by the farewell gift he received and the award that he was put in for.

	b.  He arrived in Germany in October 1986 while his unit was in the field.  Two weeks later, he was notified his father had a heart attack and he returned to the States on emergency leave.  While still on emergency leave, he talked with his hometown recruiters and was told he would be attached for 90 days and everyone would receive orders.  However, he did not receive his pay and wrote his unit to tell them to put his checks in the company safe for when he returned.

	c.  He returned to Germany with his spouse in February 1987 but his unit did not have his paychecks and did not know what he was talking about.  He was demoted from private first class (PFC) to private (PVT)/E-1 in front of the formation for no reason and was humiliated and degraded.  He was later told his rank/grade was shown as PVT/E-2 so he was allowed to wear that rank.
	d.  He rented an apartment for him and his spouse and bought a car.  However, when he went to finance, he found out he had been reported as being absent without leave (AWOL) and given $50.00 in casual pay.  His pay problem continued and caused problems with his being able to pay his rent and insurance.  His squad leader had to escort him to finance when he drew casual pay and escorted him around to ensure he paid the bills he owed.  By the end of May 1987 his pay problem continued and his unit was not concerned so he made arrangements for his wife to return home as she was pregnant.  He feels this voided his extension of service as the only reason he extended his enlistment was so his wife could join him in Germany.

	e.  His pay problem continued through September 1987 when he put in for leave to visit his family.  Prior to his going on leave, the applicant's executive officer (XO) called him into his office and told the applicant that he had not seen anyone treated as badly as the applicant had been and that the applicant was a fool if he returned to the unit.  The XO told him he should stay home, get a job, take care of his family, and get on with his life.  In addition, the XO stated the applicant was within weeks of his original contract being fulfilled and his extension was void because his wife could not be with him through no fault of his own.  He would be taken to Fort Knox, KY, to out-process and would probably be given a general discharge.

	f.  He served proudly the whole time he was in the Army.  Based on all that happened to him he believes he deserves an upgrade of his discharge.

3.  The applicant provides:

* One statement of support
* Two pages of a DA Form 3286-55-R (Statements for Enlistment U.S. Army Regimental/Cohort Enlistment Option)
* Two orders
* Fourteen Leave and Earnings Statements (LES) from September 1986 to October 1987
* A receipt written in German
* A one-page letter, dated 23 March 1987
* Three certificates
* A photograph

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's records show he enlisted in the Regular Army on 20 November 1984 for a period of 3 years and he held military occupational specialty 11B (Infantryman).  On 27 August 1986, he voluntarily extended his enlistment for 21 months based on a pending overseas assignment.

3.  On 20 October 1986, he was assigned to Company B, 2nd Battalion, 36th Infantry Regiment, Germany.  He was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Hand Grenade Bar.

4.  On 5 October 1987, he was reported as AWOL from his assigned unit and on 5 November 1987 he was dropped from the rolls.

5.  On 12 January 1988, he was apprehended by civilian authorities and returned to military control at Fort Knox, KY.

6.  On 20 January 1988, court-martial charges were preferred against him for one specification of being AWOL from 5 October 1987 to 12 January 1988.

7.  On 20 January 1988, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct 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 that were available to him.  Following consultation with legal counsel, he 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.

8.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

9.  On 26 January 1988, his immediate commander recommended approval of his request for a discharge for the good of the service.  The commander stated based on the applicant's previous record, punishment could be expected to have a minimal rehabilitative effect and a discharge would be in the best interest of all concerned.

10.  On 29 January 1988, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 8 March 1988, he was discharged accordingly.  

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged by reason of for the good of the service - in lieu of court-martial with an under other than honorable conditions characterization of service.  He completed 3 years and 12 days of creditable active service with 99 days of time lost due to AWOL.

12.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted/reduced to the rank/grade listed as follows:

* PVT/E-2 - 20 May 1985
* PFC/E-3 - 20 November 1985
* PVT/E-2 - 6 February 1986
* PFC/E-3 - 20 July 1987
* PVT/E-1 - 29 January 1988

13.  The applicant's pay records are not available for review with this case.  

14.  The applicant provides:

	a.  A statement of support from his spouse, dated 18 January 2012, wherein she stated when she arrived in Germany in February 1987 they were able to get housing and things were going well until he did not receive his paycheck at the end of February 1987.  His unit kept telling him it would be taken care of and he was issued casual pay but the pay problem continued and they couldn't pay their bills.  She found out she was pregnant in April 1987 and since his unit was not helpful with straightening out his money situation, she moved back to Ohio in May 1987.  When her husband returned home on leave in October 1987, he told her about his conversation with the unit XO and they agreed it would be best if he did not return to the unit.

	b.  A DA Form 3286-55-R, that states in pertinent part, that in connection with his enlistment in the Army, he was guaranteed a minimum of 36 months to the unit indicated.  In the event his enlistment contract could not be fulfilled he could request to be released from active duty, assignment to another unit, or other training.

   c.  LES's from September 1986 to October 1987 that reflect there were issues with his pay throughout that period.

15.  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 included 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.  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 3-7a, 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.

17.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was 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 an offense 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.  The applicant provides his LES's from September 1986 to October 1987 that reflect there were issues with his pay throughout that period.  However, his pay records are not available for review with this case so it cannot be determined what caused his pay problems, how much he received in casual pay, and when or how his pay issues were eventually resolved.  Regardless, pay problems are not justification for being AWOL.

3.  There is no evidence and the applicant did not provide any evidence that shows he was advised by the unit XO that his enlistment contract and extension were void and he was a fool if he returned to his return to his unit in Germany.

4.  Although it appears his original enlistment contract of assignment to a COHORT unit for 3 years was not fulfilled, he had the option of requesting an early separation instead of voluntarily extending his enlistment in order to serve an accompanied overseas tour.  In addition, the extension was not a guarantee of an accompanied tour and the applicant stated it was his decision to send his spouse home.  The fact that his spouse departed the command early did not void his extension.  

5.  His record of service shows he was AWOL for over 3 months when he was apprehended and returned to military control.  Also, his DA Form 2-1 records a reduction in grade on 6 February 1986, before he went to Germany.  Based on his 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.  Therefore, he is not entitled to a general discharge or 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 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)                                         AR20120001786





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ABCMR Record of Proceedings (cont)                                         AR20120001786



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