IN THE CASE OF:	  

		BOARD DATE:  21 November 2013

		DOCKET NUMBER:  AR20130005696 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states after receiving a telephone call that his mother had been in a terrible accident he went home on leave to be with her, but the leave time he took was not enough.

   a.  At the time of the accident, his mother (Mary B----) was working at an Imperial Foods chicken processing plant.  There was a boiler explosion, the workers ran to escape, and his mother was trampled.  She sustained burns to her arms and legs and she was put on life support.

   b.  After many days at her bedside, the family convinced the applicant and his two brothers to "pull the plug."  It was a difficult time for him having just returned from Operation Desert Storm.

3.  The applicant provides no additional documentary 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.  The applicant enlisted in the Regular Army on 3 October 1989 for a period of
3 years and 15 weeks.  He was awarded military occupational specialty 13B (Cannon Crewman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) that he was absent without leave (AWOL), as follows:

* from 17 October 1991 through 28 October 1991
* on 5 November 1991

4.  On 12 May 1994, court-martial charges were preferred against the applicant for being AWOL from 12 November 1991 to 7 May 1994.

5.  A DD Form 93 (Record of Emergency Data), completed by the applicant on 10 May 1994, shows the applicant was married and he listed Mary B---- (his mother) as a beneficiary, if he had no surviving spouse or children.  It also shows his mother resided at the same address as his spouse.

6.  On 12 May 1994, the applicant consulted with legal counsel and he voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

   a.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was given an under other than honorable conditions discharge.

	b.  He was advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

	c.  The applicant and his counsel placed their signatures on the document.
7.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge with service characterized as under other than honorable conditions.

8.  The separation authority approved the applicant's request for discharge and directed his discharge under other than honorable conditions.

9.  The applicant's DD Form 214 (Certificate of Discharge or Release from Active Duty) shows he was discharged on 29 November 1994 under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.  It also shows he completed 2 years, 7 months, and 19 days of net active service.

10.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

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

	a.  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.  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.  Chapter 3, 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.

	c.  Chapter 3, 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 that his discharge under other than honorable conditions should be upgraded because his mother was seriously injured in an accident and he stayed away from his unit beyond the period of his leave because he had to make a very difficult decision pertaining to his mother.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

3.  The evidence of record shows the applicant was AWOL from 12 November 1991 to 7 May 1994 and that he elected to request discharge in lieu of being court-martialed.  The evidence of record also shows that, on 10 May 1994, the applicant indicated that his mother was residing at the same address as his wife.

4.  The applicant was AWOL for a total of 920 days (more than two and one-half years) and he elected to request discharge in lieu of being court-martialed.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or an under honorable conditions (general) discharge.

5.  Therefore, there is an insufficient basis for granting the requested relief.

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)                                         AR20130005696



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ABCMR Record of Proceedings (cont)                                         AR20130005696



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