IN THE CASE OF: 

		BOARD DATE:	    4 January 2013

		DOCKET NUMBER:  AR20120008611 


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, in effect, an upgrade of his discharge under other than honorable conditions to a general discharge.

2.  The applicant states:

* in May 1989, he received a weekend pass to fly home to South Jersey
* he stayed in New Jersey for 3 days and he could not get an available military flight that would get him back to Pensacola in time
* he called his supervisors and let them know of his dilemma and he communicated that he would be back as soon as he could secure a commercial flight
* upon his return, he received an Article 15 and had to appear before the post commander
* he was labeled a troublemaker when he started to inquire about when he would be assigned to the National Security Agency (NSA) building
* he found out there were no available jobs slots in NSA and that it could be a while before he could work in his military occupational specialty (MOS)
* there was a congressional investigation into his issues and he was summoned to appear before his commander
* he was told he should not have written any congressional letters and that there was a record of his prior conduct
* he stated to his commander that he had every right to seek the counsel of his congressman
* he also requested the status of his top secret clearance and he could not get any specifics
* all he wanted was to work as a Non-Morse Specialist
* he continued to seek the advice of a local politician and he received a weekend pass to New Jersey
* his weekend pass was revoked and he believes it was in retaliation for the congressional letters he wrote

3.  In his application, the applicant states he was told he needed to report to his senior noncommissioned officer immediately.  He states he communicated that he had not met with his Government official and that he would like to do so.  He states he was told that if he did not report back to base that day, he would be absent without leave (AWOL) and his response was "I'll just be AWOL."  He states:

* he was AWOL approximately 34 days and during that time, his father was in constant touch with his commander
* his commander told his father if he reported to Fort Dix immediately, the Army would out-process him and he would receive a general discharge
* he was also told that since he was AWOL for more than 30 days he was considered to be a deserter
* upon his return he stayed in confinement for almost 30 days
* at the time all he wanted was to get out of the Army
* he was shocked and dismayed when he received a discharge under other than honorable conditions, for the good of the service in lieu of trial by court-martial
* he applied to the Army Discharge Review Board (ADRB) and his issues were rejected
* he admits that going AWOL was wrong, but he believes the discharge he received was excessive considering the length of time he was AWOL and that he reported back to Fort Dix
* he never received any military legal counsel and he never refused military counsel
* since his discharge he has become a minister and he has served his community well

4.  The applicant provides:

* Army Review Boards Agency letter, dated 7 May 2012
* Congressional Control Sheets, dated 1 May 2012
* Letter to the Office of the Chief of Legislative Liaison (OCLL), dated 24 April 2012 
* OCLL letter, dated 6 March 2012
* United States Senate letter, 21 March 2012
* Self-authored letter, dated 2 February 2003
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 19 April 1880
* Part of an ADRB letter with envelope, dated 21 June 2004
* ADRB Letter, dated 11 January 2005
* ADRB Letter, dated 13 January 2005

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.  On 29 December 1988, the applicant enlisted in the Regular Army for 4 years, in pay grade E-1.  He completed training as a Signal Intelligence Non-Morse Interceptor Analyst.  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows the applicant was AWOL from 25 May 1989 through 30 May 1989.

4.  He was promoted to pay grade E-2 on 1 August 1989.  He was promoted to pay grade E-3 on 29 November 1989.

5.  On 25 January 1990, the applicant was notified that charges were pending against him for being AWOL from 12 December 1989 until 17 January 1990.  He acknowledged receipt of the notification and he met with counsel.  He submitted a 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.  In his request for discharge, the applicant acknowledged he understood:

* if his request for discharge were accepted, he could be discharged under other than honorable conditions
* he could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions

6.  The applicant submitted a statement in his own behalf in which he contended:

* he went AWOL because of problems with his fiancée 
* he believed he needed to take care of the problem
* he did not want to be in the military at all and it seemed to be the only way to get out
* he had spoken with his noncommissioned officer in charge, his chaplain, and his congressman

7.  The appropriate authority approved his request for discharge on 4 April 1990 and directed the issuance of a discharge under other than honorable conditions.

8.  On 19 April 1990, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

9.  On 18 April 1997, the ADRB denied the applicant's petition for an upgrade of his discharge.  The ADRB stated it noted that his file contained his signed enlistment statement acknowledging he understood that upon completion of his training he would be assigned in accordance with the needs of the Army, and no promise had been made to him concerning the specific job or station to which he would be assigned.  The ADRB stated the evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished an individual who is discharged for the good of the service.

	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.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  There is no evidence in the available records showing he was experiencing retaliation for contacting his congressman or other politicians while he was in the Army.

3.  The available evidence shows he was AWOL for more than 30 days to take care of problems with his fiancée.  He voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  He could have elected to stand trial by court-martial; however, if convicted, he could have been issued a punitive discharge.  There is no evidence in his record showing he was told he would receive a general discharge.  

4.  He was discharged in accordance with the applicable regulation and the type of discharge he received appropriately characterizes his overall record of service.

5.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from military service.

6.  The applicant's periods of AWOL rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

7.  In view of the foregoing, his request should be denied.

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)                                         AR20120008611





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ABCMR Record of Proceedings (cont)                                         AR20120008611



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