BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120007497 


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 (UOTHC) discharge to a general or honorable discharge.

2.  He states:

* he actively participated under honorable conditions for more than half of his required period of service
* he was sick, drank heavily, and made a critical error in judgment 
* he had prior honorable service from 1979 to 1985 and he performed honorably from 1987 until 1990
* he was informed at Fort Knox, KY that he would receive a corrected DD Form 214 (Certificate of Release or Discharge from Active Duty) after 7 years
* since 1997, he has made numerous attempts to acquire his military records for the period 1987 through 1994 without any results

3.  He provides two DD Forms 214, a self-authored statement, and four character references.

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 initially enlisted in the Regular Army on 7 November 1979.  He was honorably discharged on 4 November 1985 after completion of 5 years, 11 months, and 28 days of active military service.  His DD Form 214 for this period of service shows he was awarded or authorized the Army Service Ribbon (ASR), Army Achievement Medal (AAM) (1st Oak Leaf Cluster), Noncommissioned Officer Professional Development Ribbon (NCOPDR), and Army Good Conduct Medal (AGCMDL).

3.  He enlisted in the Regular Army on 17 March 1987 for a period of 3 years.  He served in Korea from 29 July 1990 to 28 July 1991.

4.  On 13 April 1994, charges were preferred against him for being absent without leave (AWOL) from 6 November 1990 to 31 March 1994.

5.  He consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person, guilty of the offense charged, acknowledged that he might encounter substantial prejudice in civilian life, and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs if a UOTHC discharge was issued.  He did not submit statements in his own behalf.  

6.  On 6 May 1994, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with the issuance of a UOTHC discharge.

7.  He was discharged on 26 May 1994 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC discharge.  He completed 3 years, 9 months, and 15 days of creditable active service during the period under review.  He had 1,242 days of lost time.  His DD Form 214 for this period of service shows he was awarded or authorized the Army Commendation Medal, AAM (3rd Oak Leaf Cluster), AGCMDL, National Defense Service Medal, NCOPDR (Basic Level), ASR, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).
8.  He provided a self-authored statement in support of his claim stating:

	a.  he suffered eye pain and migraines while in Korea and he chose to medicate himself due to the pressure of peers and superiors.  The combination of sickness and alcohol consumption led him to make a very poor decision and he felt a need to run.  He continued to run from his problems and consumed alcohol after he returned to the United States.  

	b.  he became blind in one eye and was diagnosed with optical neuritis.  He also has non-malignant brain tumors and the combination creates migraines.  He spent some time on IV steroids and he continued to work every day as a machinist.  

	c.  he ignored his physical ailments, but his alcohol issues persisted especially after the death of his father in 1997.  His mother passed in 2005 and his ailments worsened and he continued to drink.  Even though he has blindness, migraines, and alcohol addiction, he has worked hard and has been a productive human being.  

	d.  he was told by the clerk who processed him out of the military that his discharge would be upgraded after 7 years since it was an administrative discharge.  The VA later informed him this information was incorrect because there is no automatic upgrade.

	e.  he was dedicated to the military, received many awards, and was well respected by his peers and superiors, but his fears of his eye and migraines led him to take flight.  

9.  He provided four character references from his sister, previous employer, spouse, and friend who state:

	a.  she's the applicant's sister.  The applicant was diagnosed with a bipolar disorder and was incapable of making a responsible decision.  He was commended and served well for the majority of his years in the service.  He's now in his senior years, has experienced enough pain over his decision, and has suffered enough for his mistake.  He was an asset to the military and he's a man of honor, a tough guy, and would have taken a bullet for his fellow service member.  Their family has a long history of military service and the family is proud of him.  The applicant spent many years working hard in a factory, gives a lot of time assisting veterans, and he volunteers at the Elks lodge in his hometown.  He's been getting treatment for his bipolar disorder for several years and is able to give back to the community.  
	b.  she's the Executive Director of Theatre Bristol.  The applicant volunteered at Theatre Bristol approximately 9 years ago.  He built sets, painted, and assisted in construction of the productions.  He was very honest with her and explained why he left his duty station.  He deeply regretted his bad decision.  He volunteered many hours after his daily job and many weekends helping with the mission of Theatre Bristol.  The applicant had severe issues with one eye and he also had migraine episodes.  His dedication to the theater staff, the mission of the theatre, and the many other volunteers was remarkable.  He led those who didn't know how to lead themselves and he set the pace for productivity.

	c.  she's been married to the applicant for over 26 years.  The applicant is a hard-working man and she's never seen him walk away from a job.  He has put off his own health issues to show up for work.  She was at home in the United States with two small kids and she was experiencing financial problems which added more pressure on the applicant.  When he left Korea, he was scared and confused because he didn't know what was happening with his head and eye.  The applicant's drinking got worse after his dad suddenly died.  He later attended church, joined the Masons, and did good things for other people.  The applicant has tried for years to get help with upgrading his discharge.  He's now in the Department of Veterans Affairs (VA) hospital and he's learning how to get things done. 

	d.  he worked with the applicant for over 15 years at Alamite Corporation as a machinist.  The applicant is a hard-working, honest man who deserves to have his record corrected because he lives with guilt, but has so much pride in the years he did do right.  He never spoke a bad word about the military and he took great pride in serving our country.  He knows the applicant as a hardworking blue collar American.  Even though he left the service without permission he's still honored to know him.  

10.  His service record does not indicate he applied to the Army Discharge Review  Board within its 15-year statute of limitations.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	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 UOTHC 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.  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.  Although the applicant contends that his misconduct was due to his medical problems and alcoholism, his service record is void of evidence which shows he was diagnosed with alcohol abuse or dependency prior to his discharge.  Also, there is no evidence he took steps to self-refer for alcohol abuse treatment or was treated at a military treatment facility for his eye and migraines while in the Army.  

2.  His service record confirms he completed prior honorable service from 7 November 1979 to 4 November 1985.  However, his service record shows he was charged with being AWOL for a period of 1,242 days during the period under review.  Considering the seriousness of his offense, his service was appropriately characterized.  

3.  His service record is void of any evidence and he did not provide any evidence that he was ever told his discharge would be upgraded after 7 years.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  

4.  His statements regarding his personal family problems are also acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

5.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.  

6.  He was advised of the effects of a UOTHC discharge.  He was afforded the opportunity to submit statements in his own behalf, but he declined.

7.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general or fully honorable discharge.  

8.  The applicant's self-authored statement and character references regarding his conduct and post service achievements were considered.  However, these factors alone are not a basis for upgrading a discharge.

9.  The evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, 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)                                         AR20120007497





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ABCMR Record of Proceedings (cont)                                         AR20120007497



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