IN THE CASE OF:	  

		BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120004536 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states he wants his discharge upgraded to acquire his vendor's license for employment to care for his family.

3.  The applicant provides no additional evidence.

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 22 May 1985.

3.  The applicant's records show he was reported as being absent without leave (AWOL) from his unit on 17 December 1985.  He was dropped from the unit rolls (DFR) effective 16 January 1986 after 30 consecutive days of unauthorized absence.

4.  On 10 November 1986, the applicant completed a Fort Dix Control Facility (FDCF) Form 691 (Personnel Control Facility Information Sheet) stating he acknowledged he had been counseled regarding the waiver of a physical and understood he might be ineligible for any later medical claim against the U.S. Government by waiving the physical.  He indicated he did not request a physical and he did want to stay in the service.

5.  On 13 November 1986 after having been advised of his rights under Article 31, UCMJ, the applicant completed an FDCF Form 691A (Personnel Control Facility Interview Sheet) stating he was AWOL because he had severe family problems at the time he entered military service.  He lost his mother and father and his brothers and sisters were placed in a home, his girlfriend gave birth to his first son, and the cousin who cared for him for 3 years following his mother's death passed away.  He stated he had never been away from home and his life was a disaster.  He was AWOL because his immediate family and his new family needed him.  He stated he talked to his noncommissioned officer before being AWOL who advised him to seek assistance through the Red Cross.  The Red Cross notified his command, but his unit did not grant him leave.

6.  On 14 November 1986, the applicant's was duty status was changed from DFR to present for duty effective 7 November 1986.  The DA Form 4187 (Personnel Action) shows he had surrendered to military authorities at Fort Hamilton, NY.

7.  On 14 November 1986, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for being AWOL from his unit from on or about 17 December 1985 to on or about 7 November 1986.

8.  On 14 November 1986, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He stated he understood he could request discharge for the good of the service because of the attached charge preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He stated he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He stated he had been advised of the implications attached to his request.  He acknowledged he understood the elements of the offense charged and was guilty of the charge against him or of a lesser-included offense which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated he did not desire rehabilitation under any circumstances as he had no desire to perform further military service.  He stated he had consulted with counsel who fully advised him of the nature of his rights under the UCMJ.  He stated he understood the possible effects of a discharge under other than honorable conditions in that he would be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further understood he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions and there was no automatic upgrading or review by any government agency.  He stated he understood his request might be processed in his absence if he departed AWOL.  He elected not to submit any statements in his own behalf to accompany his request for discharge.  His voluntary request for discharge was certified by consulting counsel.

9.  On 19 November 1986, the Commander, Company A, U.S. Army Personnel Control Facility, Fort Dix, recommended approval of the applicant's request with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 18 December 1986, the Commander, Headquarters Command, U.S. Army Training Center and Fort Dix, approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

11.  On 15 January 1987, the applicant was discharged for the good of the service under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 months and 5 days of net active service with lost time from 17 December 1985 to 6 November 1986.

12.  There is no evidence to show the applicant petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

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 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 a general discharge is authorized, a discharge under other than honorable conditions was considered appropriate at the time.

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 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 request for an upgrade of his discharge was carefully considered and determined to lack merit.

2.  The applicant's records show he was AWOL from 17 December 1985 through 6 November 1986, a period of 325 days.

3.  The applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, was voluntary and administratively correct.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  Based on his record of AWOL, the applicant's 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 an honorable or a general 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 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)                                         AR20120004536



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120004536



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1