BOARD DATE:	  6 March 2014 

		DOCKET NUMBER:  AR20130009953 


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 to either an honorable or general, under honorable conditions discharge and amendment of his DD Form 214 (Certificate of Release or Discharge from Active Duty) accordingly. 

2.  He states the sole disciplinary issue that led to his chapter 10 (in lieu of court-martial) discharge was a single charge of absence without leave (AWOL).  Specifically, he had a family emergency in that his 18-year old, insulin dependent, diabetic wife was pregnant.

	a.  He describes being caught off guard with his wife's illness and the possibility of her going into a diabetic coma.  He was the only help his wife had as her parents refused to let her temporarily move back in with them through the pregnancy.  He and his wife also pleaded with his parents but unfortunately they were not able to assist in caring for her in his absence.  

	b.  After rejection from both of their families, he realized he was the only one his wife could depend on.  He made a decision to stay with her and he apologizes for letting the Army down and not fulfilling his commitment.  He still believes to this day that he made the right decision at the time.  He contends he is not perfect but is honest, dependable, trustworthy, and honorable.    

3.  He adds that in spite of repeated attempts to seek assistance from his chain of command, he was unable to get his orders to Korea changed so that he could remain with his wife through her pregnancy as recommended by both her military and her civilian physicians.  As a result, he elected to do what he thought was morally correct even though it violated the Uniform Code of Military Justice (UCMJ). 

4.  The applicant states he remained with his wife in North Carolina through her pregnancy.  After their son was born and he was certain that she and the baby were medically stable, he turned himself in to the authorities at Fort Knox, KY.  When he returned to the Army he was advised that his options were prison or requesting a chapter 10 discharge under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel). 

5.  In addition, he believes that his pre-AWOL active duty service and the mitigating circumstances surrounding his period of AWOL make the characterization of his service as "Other Than Honorable" unfair.  He adds that the character and quality of his life since 1988 make it unfair and inappropriate for him to continue to bear the stigma and suffer the handicaps associated with receiving an under other than honorable conditions discharge today, some 
25 years after the events.  He applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge and his application was rejected in 1996.

6.  The applicant provides four copies of his application which includes:

* medical statements pertaining to his wife's condition in 1987
* his DD Form 214
* Department of Veterans Affairs (VA) documents
* fourteen letters 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.  He enlisted in the Regular Army on 1 May 1985.  He was assigned to Fort Stewart, GA, after completion of training.  The highest rank he attained while serving on active duty was specialist four.  His record does not contain any other disciplinary infractions.  There are no special acts of valor listed.

3.  A DA Form 31 (Request and Authority for Leave), dated 18 March 1987, indicates he was on permanent change of station (PCS) leave in North Carolina during the period 18 March to 16 April 1987.  This form also shows he had a port call date of 22 April 1987 to report to his unit in Korea.  

4.  The applicant provided two medical statements dated in 1987 that show his wife's medical condition at that time.  She was diagnosed as having diabetes which required insulin injections.  She was also pregnant and lived alone and it was the doctor's opinion that her husband (the applicant) should have been stationed locally until after her expected date of delivery of 12 December 1987.

5.  The applicant's record contains Headquarters, XVIII Airborne Corps and Fort Bragg, Orders 77-21, dated 23 April 1987, which show he was attached to the 18th Airborne Corps Replacement Detachment effective 16 April 1987 pending consideration of a compassionate reassignment.  Documentation showing the final decision of his request for compassionate reassignment is not in the available record; however, Orders 118-22, dated 22 June 1987, released him from attachment effective 26 June 1987 and directed him to report to his unit in Korea not later than 24 hours after his leave ended.  

6.  His record contains a second DA Form 31 that shows he was on leave during the period 26 June to 9 July 1987. 

7.  A DD Form 458 (Charge Sheet) shows he was AWOL from 10 July 1987 to 
22 March 1988, in effect, he did not report to the U.S. Army Military Personnel Replacement Center, Yongsan, Korea as directed in Orders 118-22.

8.  On 24 March 1988, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of a discharge under other than honorable conditions, and the rights available to him.  In his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser-included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.

9.  He also stated he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further indicated he understood he could encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  After being advised of his rights, the applicant elected not to submit a statement on his behalf.

10.  The applicant's chain of command recommended approval of his request for discharge for the good of the service.  The appropriate approval authority approved the request and directed the applicant's discharge under other than honorable conditions.

11.  Accordingly, on 24 May 1988, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His DD Form 214 shows his characterization of service as under other than honorable conditions, his reduction to pay grade E-1, completion of 2 years, 4 months, and 12 days of net active service and lost time from 10 July 1987 through 21 March 1988.

12.  He applied to the ADRB in 1996 for an upgrade of his discharge and that board determined he was properly and equitably discharged and denied his request. 

13.  He also provided 14 letters of support from various relatives, friends and associates.  These letters collectively describe the applicant as- 

* always taking up for the "underdog" 
* honorable, loyal, and understanding
* forthcoming and totally committed to hard work
* an extremely dedicated husband and brother
* passionate about every aspect of the U.S. Army
* never having been in trouble with law enforcement
* always willing to help friends and neighbors within his community 
* an extremely dedicated and supportive family man
* active with community organizations
* an honest, caring, dedicated and trustworthy husband, father and friend
* having high morals and values
* a true hero in life
* always striving to do the right thing

14.  The applicant provides VA documents that show his service from 1 May 1985 to 24 May 1988 was not listed as "honorable" and a decision would have to be made by the VA that his service was not "dishonorable" to make him eligible for benefits.  
15.  Army Regulation 635-200 sets forth the basic authority for the 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 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.

	b.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his under other than honorable conditions discharge to either honorable or general was carefully considered.   

2.  The evidence of record shows that he served honorably from 1 May 1985 until 9 July 1987, a period of a little over 2 years without any disciplinary infractions.  It appears he did make an attempt to get compassionately reassigned to Fort Bragg, NC, while pending reassignment to Korea but his request was not honored and the reasons for the denial are not in the available record.  

3.  He received official PCS orders that directed him to report to Korea on 10 July 1987.  However, he made a conscious decision to stay at home and care for his wife which placed him in an AWOL status.  While the circumstances surrounding his wife's condition at the time were unfortunate, the offense of AWOL was and still is punishable under the provisions of the UCMJ for which a bad conduct or dishonorable discharge could be imposed.  

4.  After surrendering to military authorities by regulation he was given the option of a trial by court-martial or requesting a discharge in lieu of trial by court-martial. Rather than face court-martial, he opted to submit a request for discharge in lieu of trial by court-martial, for the good of the service and his request for discharge was approved.

5.  Accordingly, he was discharged under the provisions of chapter 10 of Army Regulation 635-200.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  

6.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

7.  His record does not contain any acts of valor or special recognition which would warrant an upgrade of his discharge.  His post-service conduct and letters of support were also taken into consideration but are not mitigating enough to support an upgrade of his discharge.  

8.  In view of the foregoing, there is no basis for granting his request for an upgrade of his discharge to either fully honorable or general, 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)                                         AR20130009953





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ABCMR Record of Proceedings (cont)                                         AR20130009953



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