IN THE CASE OF:	  

		BOARD DATE:	    15 January 2013

		DOCKET NUMBER:  AR20120009837 


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.

2.  The applicant states he would like his discharge upgraded due to mitigating circumstances.  He had a spouse and children and his military pay was not enough to live off of.  He temporarily left [the Army] to work in the oil fields in order to make enough money for his family to survive.  He believes he tried to serve honorably but he could not stand by and watch his family suffer financially when he knew he could do something to alleviate their hardship.  He had prior experience in the oil fields and knew he could get a job quickly and make enough money to support them for the short term.  He did not make enough money to pay for the new home he purchased just before joining the Army.

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 16 November 1982 and he held military occupational specialty 11B (Infantryman).  He was assigned to the 2nd Battalion, 16th Infantry, Fort Riley, KS.

3.  On 18 July 1983, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from his assigned unit from 30 June to 6 July 1983.

4.  On 28 October 1983, he received NJP under the provisions of Article 15, UCMJ for being AWOL from his assigned unit from 19 to 25 October 1983.

5.  On 19 December 1983, he was reported AWOL from his assigned unit and on 23 December 1983 he was dropped from the rolls (DFR).  

6.  On the DA Form 4187 (Personnel Action) his unit prepared to change his status from AWOL to DFR, his immediate commander stated it was his belief the applicant left his place of duty with the intention of not returning as it was his third AWOL offense, he was a major suspect in a telephone theft involving an excess of $1,100.00, and he told a noncommissioned officer that he was going to use an alias and go to work elsewhere.

7.  On 8 February 1984, he was apprehended by civilian authorities and returned to military control at Fort Sill, OK.

8.  On 9 February 1984, court-martial charges were preferred against him for one specification of being AWOL from 19 December 1983 to 8 February 1984.

9.  On 9 February 1984, he 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 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.

10.  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.

11.  On 15 February 1984, his immediate commander recommended approval of his request for a discharge with an Under Other Than Honorable Conditions Discharge Certificate.  The commander stated the applicant was divorced and had one dependent.  He had become disillusioned with the military and rehabilitation efforts were considered futile.

12.  On 24 February 1984, the separation authority approved his 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 7 March 1984, he was discharged accordingly.  

13.  The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of court-martial, with an under other than honorable conditions characterization of service.  He completed 1 year, 1 month, and 20 days of net active service with 65 days of time lost due to AWOL.

14.  There is no evidence in his records that shows the applicant notified his commander that he had financial problems or that he sought assistance in dealing with financial issues while serving on active duty.

15.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  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.

17.  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.

18.  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 contends his discharge should be upgraded because he went AWOL because his spouse and child were suffering financially.

2.  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.  

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  If there were mitigating reasons for his repeated AWOLs, he could have brought them to his commander's attention during his separation processing.  There is no evidence that shows he did so.

4.  The evidence of record confirms at the time of his last AWOL, he was divorced with one dependent, had become disillusioned with the Army, and was a major suspect in a telephone theft involving an excess of $1,100.00.  There is no evidence that indicates he went AWOL because of financial reasons, or that he sought financial help from his unit or the Army for any financial hardships he may have endured.  Regardless, the desire to make more money is not a valid reason for going AWOL.

5.  His record of service shows he went AWOL on three different occasions and was AWOL for over 50 days when he was apprehended and returned to military control.  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)                                         AR20120009837





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ABCMR Record of Proceedings (cont)                                         AR20120009837



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