IN THE CASE OF:	  

		BOARD DATE:	    30 July 2013

		DOCKET NUMBER:  AR20130000793 


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 to an honorable or a general under honorable conditions discharge.

2.  He provides a brief synopsis of his military service and his accomplishments during his service.  He received many awards during his service.  He and his wife were experiencing marital problems and she wanted him to get out of the service, but he refused to do so.  He sought marital counseling with the chaplain and assumed everything was going well until she threatened to take their two sons from him if he did not get out of the Army.  His sons meant everything to him and, therefore, he left the Army and returned home with his ex-wife and two children.

3.  He provides his self-authored statement, a supporting statement, and a list of his achievements, schools, and awards.

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 (RA) on 13 February 1980 for 3 years.  He reenlisted in the RA on 23 December 1982 for an additional 6 years.

3.  On 3 May 1988, charges were preferred against him for being absent without leave (AWOL) from 13 May 1987 to 3 May 1988.

4.  In his Personnel Control Facility (PCF) Interview Sheet, dated 3 June 1988, when asked "Why did you go AWOL?"  He stated because his wife told him that it was her or the Army, so he had to take his family over the Army.  When asked "What action did you take before going AWOL to solve the problem?"  He stated he talked to the chaplain and his platoon sergeant about the problem.

5.  On 8 June 1988, he consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

6.  In his voluntary request for discharge, he indicated he was making the request of his own free will and had not been subjected to coercion whatsoever by any person.  He understood if his request were accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  The applicant elected not to provide a statement on his behalf.

7.  On 25 July 1988, the appropriate authority approved his request and directed the issuance of a discharge under other than honorable conditions.

8.  On 11 August 1988, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he received an under other than honorable conditions character of service.  It also shows he completed 6 years, 6 months, and 11 days of net active service during this period with lost time from 13 May 1987 to 2 May 1988.

9.  On 1 May 1990, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 14 August 1991, after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  The board denied his request for a discharge upgrade.

10.  He provides a listing of his achievements to include the awards he received and schools he attended during his military service.  The courses he completed and the awards he received are also listed on his DD Form 214 and contained in his record.  These courses include, but are not limited to, his completion of the Primary Noncommissioned Officer Course and the Basic Noncommissioned Officer Course.  Additionally, he was awarded the Army Commendation Medal, Army Achievement Medal (3rd Award), and the Army Good Conduct Medal (2nd Award).

11.  The applicant provides a statement from his current spouse expounding on his accomplishments since his discharge from the Army.  She explained she assisted him in getting into a job training program so that he could be retrained for a position in drafting and AutoCAD.  She continued by expounding on the applicant's efforts to find his children for 12 years after his ex-wife kidnapped them while he was working.  She concludes by stating that the applicant was and is a wonderful step-father for her children and is always there for them.

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

	a.  Chapter 10 of the version in effect at the time provided 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.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

	b.  Paragraph 3-7a provides 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 argues, in effect, that his discharge should be upgraded because his AWOL was due to threats by his ex-wife that she would take their children if he did not leave the Army.  Although he maintains he sought counseling from the chaplain and his platoon sergeant concerning his problem, he does not specify what advice was given and whether or not he tried to alleviate the problem with the use of leave.  Therefore, his contention that his ex-wife's ultimatum led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  The applicant provides a listing of his achievements, schools, and awards. Since this information is also contained in his record, it is presumed that the discharge approval authority was well aware of his accomplishments prior to determining his character of service.  

3.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The record further shows he admitted he was guilty of being AWOL from 13 May 1987 to 2 May 1988.  The record also shows he voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial.

4.  His record of service included almost 356 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service as 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)                                         AR20130000793





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ABCMR Record of Proceedings (cont)                                         AR20130000793



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