IN THE CASE OF:	  

		BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120011517 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states:

	a.  He was released under very stressful and troublesome personal difficulties.  He wants his letter of recommendation from Captain (CPT) AP to be considered.  His collapse as a good Soldier came during his divorce and his mother's illness.

	b.  He apologizes to the Army for abandoning his service and not completing his term of service.  He was affected by his sudden divorce and his mother's illness.  He could not leave his mother to care for herself as all of his siblings had already left home to begin families.  His mother was weak and needed attention until she passed away.

	c.  He believes he served long enough to apply for a change in his discharge to a general discharge.  He loves his country and believes he deserves a second chance.  He was a superb Soldier but he was affected by circumstances during his service in the Army.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a letter, and four statements of support.



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 23 January 1985 and he held military occupational specialty 31V (Tactical Communications System Operator/Mechanic).  He was assigned to the 7th Engineer Battalion, Fort Polk, LA, on 30 July 1985.

3.  On 25 October 1985, he was reported as absent without leave (AWOL) from his assigned company and on 23 November 1985 he was dropped from the rolls.

4.  On 10 May 1986, he was apprehended by civil authorities and he was returned to military control at Fort Sill, OK. 

5.  On 16 May 1986, court-martial charges were preferred against him for one specification of being AWOL from 25 October 1985 to 10 May 1986.

6.  On 16 May 1986, 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 Uniform Code of Military Justice (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.

7.  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.  He declined to submit a statement on his own behalf.

8.  On 23 May 1986, 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 no dependents.  He had gone AWOL for personal reasons.  He had been unable to adjust to military life and rehabilitation efforts were considered futile.

9.  On 30 May 1986, 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 16 June 1985, he was discharged accordingly.  

10.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with an under other than honorable conditions characterization of service.  He completed 10 months and 9 days of net active service with 122 days of time lost due to being AWOL.

11.  There is no evidence in the available records that show the applicant notified his commander he had marital problems, his mother was ill, or that shows he sought assistance in dealing with family problems/issues while serving on active duty.

12.  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.

13.  The applicant provides:

	a.  A letter of commendation from CPT AP, dated 28 March 1985, commending the applicant for his outstanding performance during initial entry training between 1 February and 28 March 1985.  CPT AP stated to be designated an honor graduate was an accomplishment in which the applicant could take great pride.

	b.  Four statements of support from his siblings, dated between 30 April and 5 May 2012, wherein they all stated the applicant had many problems in his marriage that were hard for him to deal with.  His wife sent him a letter while he was away in the Army and said she wanted a divorce.  This was detrimental to him and he wanted to come home and work things out.  Their mother had several medical issues; she was diagnosed with cancer, had asthma and bronchitis, and was always ill.  When he came home on leave in October 1985, their mother became dependent on him so he decided to stay home and take care of her.  

14.  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.

15.  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.

16.  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 had family problems due to a divorce and his mother's illness.

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 lengthy AWOL, he could have brought them to his commander's attention during his separation processing.  There is no evidence that shows he did so.

4.  His record of service shows he went AWOL and was AWOL for 122 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)                                         AR20120011517



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ABCMR Record of Proceedings (cont)                                         AR20120011517



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