IN THE CASE OF:	  

		BOARD DATE:  18 June 2013

		DOCKET NUMBER:  AR20120022045 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he was given a compassionate reassignment to Fort Knox, KY because of his baby's health.  The doctor told him his son had to have open heart surgery and could not travel to Germany.  One week before his compassionate reassignment was ending he applied for an extension due to his son's surgery but was denied.  He was to report back to his company in Germany but he did not report because he stayed with his son for his surgery.  He is trying to get veteran's benefits because he is disabled and they will not consider him until his discharge is changed to honorable.

3.  The applicant provides no additional evidence in support of his application.

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.  He initially enlisted in the Regular Army on 27 February 1967.  He was awarded the military occupational specialty (MOS) 95B (Military Policeman).  He served in the Republic of Vietnam from 25 October 1967 to 24 October 1968 and he was awarded the Purple Heart.  He was released from active duty on 9 March 1970 after serving 3 years of active service that was characterized as honorable. He had 11 days of time lost.

3.  He enlisted again in the Regular Army on 9 August 1976 for a period of 
3 years.  He was awarded MOS 11B (Infantryman).  He was promoted to sergeant/pay grade E-5 on 12 July 1978.  He immediately reenlisted on 
18 August 1978 for a period of 6 years.

4.  On 9 April 1982, he was attached to C Company, 4th Battalion, 4th Infantry at Fort Knox, KY.  On 19 July 1982, he was assigned to C Company, 1st Battalion, 39th Infantry in Germany.  On 15 October 1982, he was placed on ordinary leave.

5.  On 1 November 1982, his status was changed from ordinary leave to absent without leave (AWOL).  He was dropped from the rolls on 30 November 1982.

6.  On 14 February 1995, his status was changed to present for duty.  He provided a statement that is dated 15 February “1994.”  He was in Germany and took a 30-day leave during which his wife had twins.  One of the boys needed open heart surgery and could not travel to Germany.  He stated he did everything he could to get the Army to transfer him to Fort Knox until his son had his operation and was able to travel.  He then asked for a medical discharge.  He stated they said ok and he signed papers and they said they would mail him a medical discharge.  He contacted Fort Knox about it and they said it was mailed, but somehow the paperwork got messed up.

7.  On 22 February 1995, court-martial charges were preferred against the applicant for being AWOL from on or about 1 November 1982 until he was apprehended on or about 14 February 1995.

8.  On 22 February 1995, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  He acknowledged he understood the elements of the offense he was being charged with and that he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he could be issued an under other than honorable conditions discharge
* advised he could submit any statements he desired in his own behalf

9.  He did not submit any statements in his own behalf.  In addition, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He also acknowledged he understood he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Department of Veterans Affairs benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

10.  His commander recommended his request for discharge be approved and that he receive an under other than honorable conditions discharge.

11.  On 3 April 1995, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial.  He directed his reduction to private/ pay grade E-1 and that he receive an under other than honorable conditions discharge.

12.  On 21 June 1995, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 6 years and 7 months of net active service this period that was characterized as under other than honorable conditions.  He had continuous honorable active service from 9 August 1976 to 17 August 1978.  He had 
4,488 days of time lost.

13.  His service medical records were not available for review.

14.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

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

	a.  Chapter 10 states 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.  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 under other than honorable conditions is normally considered appropriate.

	b.  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.  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.  He contends his reason for going AWOL was his son was seriously ill and needed heart surgery and he could not get an extension on his compassionate reassignment.  However, he has provided no substantive evidence to support his contention.  His statements concerning his son's medical condition are noted.  However, all health benefits provided by the Army for his son would have ceased as soon as he was placed in an AWOL status.  In addition, the fact that he remained AWOL for over 12 years ending with apprehension by civil authorities negates any mitigating circumstances that may have been considered.

2.  He contends he requested a medical discharge and was told ok.  His service medical records were not available and there is no evidence in his Military Personnel Records Jacket of him having any physical or medical condition warranting a medical discharge.  

3.  In promoting the applicant to sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  By going AWOL the applicant violated this special trust and confidence.

4.  He had over 9 years experience in the Army at the time he went AWOL.  As such, he should have been aware of avenues, other than going AWOL, that he should have pursued in resolving any issues he had with the Army.  

5.  He was charged with an offense punishable by a punitive discharge.  He consulted with counsel, voluntarily admitted guilt to the offense or lesser offenses included, and requested discharge in lieu of court-martial.  He acknowledged in his request for discharge that he could receive an under other than honorable conditions discharge.  

6.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu trial by court-martial was administratively correct and in conformance with applicable regulations.

7.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  A discharge under other than honorable conditions is normally considered appropriate when a member is separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

8.  In view of the above, there is an insufficient basis to upgrade his discharge to an honorable discharge or a general discharge under honorable conditions.

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)                                         AR20120022045



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ABCMR Record of Proceedings (cont)                                         AR20120022045



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