IN THE CASE OF:	  

		BOARD DATE:  28 January 2014

		DOCKET NUMBER:  AR20130008690 


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 an under honorable conditions (general) discharge.

2.  The applicant states that after he returned from the war he was only granted a 3-day pass while others were granted 30 days.  He contends he was suffering from emotional stress and he was not in a very good state of mind when he went absent without leave (AWOL).  His state of mind should be taken into account when determining the character of his service.

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

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 28 July 1987.  He completed his initial training and was awarded military occupational specialty (MOS) 71G (Patient Administrative Specialist).

3.  He was absent without leave (AWOL) from 8 June 1991 to 15 May 1994.  Court-martial charges were preferred against him for this AWOL offense on 
23 May 1994. 

4.  On 23 May 1994, after consulting with legal counsel, he voluntarily requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Federal and State veterans benefits.  He elected to submit a statement in his own behalf.
   
5.  The applicant contended in his statement that he went AWOL because he was denied leave after he returned from Desert Shield/Desert Storm.  He regretted his decision but at the time he felt like he deserved to go home and visit his family.  He felt it was time to part ways from the service and continue on with his life.

6.  The available evidence shows the applicant's immediate commander recommended that the applicant be discharged for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge.  His intermediate commander recommended an uncharacterized separation.

7.  On 12 July1994, the appropriate authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1.

8.  On 19 August 1994, he was discharged accordingly.  His DD Form 214 shows he completed 4 years, 1 month, and 15 days of total active service with lost time from 8 June 1991 to 14 May 1994 (1,072 days).

9.  On 13 February 1998, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

10.  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 under the Uniform Code of Military Justice (UCMJ) 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 under other than honorable conditions is normally considered appropriate, but the separation authority may direct an honorable or a general discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

	a.  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.

   b.  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 requests his discharge under other than honorable conditions be upgraded.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

3.  The applicant contends he went AWOL after he was denied leave; however, there is no evidence to show this and the applicant has failed to provide evidence to show that going AWOL was the only solution to resolving his personal circumstance.  In addition he was AWOL for almost 3 years when the most leave he would have been given would have been about 30 days.  His record of service shows he had 1,072 days of lost time amounting to misconduct which clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.   In view of the foregoing, his request should be denied.



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)                                         AR20130008690





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130008690



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1