IN THE CASE OF:	  

		BOARD DATE:  16 August 2012

		DOCKET NUMBER:  AR20120003344 


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 other than honorable discharge be upgraded to honorable.

2.  The applicant states he was more than an average Soldier with numerous awards to include an Army Good Conduct Medal and a top secret clearance.  He had a great love for the military and he did well until one morning when he answered the phone and heard another Soldier ask his wife if he, the applicant, was gone yet.  He ended up fighting with his wife and was arrested for family violence.  He became depressed and lost.  After he got out of jail, his unit sent him to counseling but it didn't help.  When his unit went to the field, he went absent without leave (AWOL) so he could follow his wife around and he caught her cheating.  He was depressed and remembers the drugs.  He turned himself in to the Army hospital.  After he was released from the hospital, he needed more help dealing with his depression and the Army offered him none.  At the time, he was confined to the barracks.  He finally cracked and went AWOL again. 

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's records show he enlisted in the Regular Army on 24 October 1984 and he held military occupational specialty 88M (Motor Transport Operator).  He was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar, Army Achievement Medal (2nd Award), Overseas Service Ribbon, and the Army Good Conduct Medal (1st Award).  He was promoted to the grade of specialist four/E-4 on 1 April 1986.

3.  He was assigned to the 3rd Squadron, 3rd Armored Cavalry Regiment, Fort Bliss, TX, on 31 March 1988.

4.  His records show he was reduced to the rank of private first class/E-3 on 30 October 1989.  The specific facts and circumstances surrounding this reduction are not available for review with this case.

5.  On 12 December 1989, he was reported AWOL from his assigned unit and on 1 February 1990 he was dropped from the rolls.  He was returned to military control on 29 March 1990.

6.  On 30 March 1990, court-martial charges were preferred against him for one specification of being AWOL from 12 December 1989 to 29 March 1990.

7.  On 30 March 1990, 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.  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 Department of Veterans Affairs 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.  He further stated he did not desire further rehabilitation and he had no desire to perform further military service.

9.  On 3 May 1990, his immediate commander recommended approval of his request for a discharge with an under other than honorable conditions discharge.  The commander stated the applicant had become disillusioned with the military and had received one Article 15 for AWOL.  The Article 15 is not available for review with this case.

10.  On 9 May 1990, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  On 5 June 1990, he was discharged accordingly.  

11.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 5 years, 3 months, and 25 days of net active service with 108 days of time lost 

12.  On 5 March 1998, the Army Discharge Review Board denied his request of an upgrade of his discharge and determined his discharge had been both proper and equitable.

13.  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.

14.  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.
15.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is 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 a serious 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.  His record of service shows he was AWOL for 108 days when he was returned to military control and he stated this was his second period of AWOL.  Based on this 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 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)                                         AR20120003344





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ABCMR Record of Proceedings (cont)                                         AR20120003344



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