IN THE CASE OF:	  

		BOARD DATE:  15 January 2013

		DOCKET NUMBER:  AR20120010732 


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 (UOTHC) to honorable.

2.  The applicant states that at the time of his misconduct he was very young and was afraid of flying following a jump-related accident.  He has learned from his mistakes and is in need of medical treatment for an ankle injury incurred on active duty.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a statement from his father.

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 at 18 years of age on 20 July 1988, completed training, and was awarded military occupational specialty (MOS) 11B (Infantryman).  He completed basic airborne training and was awarded the Parachutist Badge and special qualification identifier P (Parachutist).

3.  The applicant's service medical records are believed to be on indefinite loan to the Department of Veterans Affairs and are not available for review.

4.  His record includes three DA Forms 3349 (Physical Profile) which show he received a 6-month temporary physical profile with a prohibition of no airborne operations on 13 February 1989 following fracture of his right ankle.  His physical profile was made permanent at level 2 on 7 November 1989 and upgraded to level 3 on 19 July 1990.  The second and third physical profiles list the reason as leg fracture times two.

5.  On 20 May 1990 while serving in Italy, the applicant was involved in an altercation at an off-base club that resulted in being charged with assault and battery and making a false sworn official statement.

6.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for aggravated assault.

7.  On 28 August 1990, the applicant was found medically unfit for airborne duty based on his permanent physical profile.  He parachutist/airborne designation was withdrawn.

8.  The applicant was advanced to the rank of specialist effective 1 September 1990.

9.  The applicant was absent without leave (AWOL) from 15 December 1990 through 25 February 1991, a period of 73 days.

10.  On 5 March 1991 after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he was guilty of the charges or lesser-included charges and that if his request were accepted he could receive a discharge UOTHC.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and he could expect to experience substantial prejudice in civilian life if he received a discharge UOTHC.  He declined to submit a statement on his own behalf.
11.  The general court-martial convening authority approved the discharge request and directed his reduction to the lowest enlisted grade with a UOTHC discharge.

12.  The applicant was discharged UOTHC on 13 May 1991.  He completed 2 years, 7 months, and 13 days of creditable service with 73 days of lost time.

13.  The applicant's father states that while his son was at home during his period of AWOL he told him he had a fear of jumping out of an airplane following an accident.  He was afraid to return to the military because he thought he might not come home alive.  He convinced his son to turn himself in and face the consequences.

14.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

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

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7b states a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

	c.  Paragraph 3-7c states a discharge UOTHC is issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.

	d.  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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was 20 years of age, had satisfactorily completed training, and had served for over 2 years before any negative incidents are documented.  His prior satisfactory performance demonstrates his capacity to serve and shows he was neither too young nor too immature.

3.  The applicant's contention that he developed a fear of flying and that this was the reason for his AWOL is without merit.  The applicant had been removed from airborne operations in August 1990 with a loss of his parachutist qualification, 4 months prior to his AWOL.

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)                                         AR20120010732



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ABCMR Record of Proceedings (cont)                                         AR20120010732



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