IN THE CASE OF:	  

		BOARD DATE:	  26 May 2014

		DOCKET NUMBER:  AR20130017567 


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 reconsideration of his previous request for an upgrade of his discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states he would like to expand on the fact that his mother had become ill and eventually passed away and he did not take her death well.  However, in addition to that he was also married at the time and his wife was pregnant by another man and was soon to deliver.  His frame of mind at 23 years old was not strong enough to deal with his mother passing away and his wife being pregnant by another man.  He went through a slew of emotional ups and mostly downs.  He was really young then and knowing how to deal with and go through the proper channels was not something he mentally knew how to do.

3.  He willingly signed documents separating himself from the Army before completing his tour of duty in Korea.  He was informed of his losses and so forth. 
His frame of mind was not mature enough to comprehend what he was doing to his future at that time.  Because of the length of time he was absent without leave (AWOL), he was told he would lose his rank and he couldn't stand the thought of starting over after all those years of hard work.

4.  The applicant provides no additional evidence.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120009680 on 29 November 2012.

2.  The applicant presents an expansion of his previous argument that his mother's illness and his wife's infidelity and subsequent divorce affected his frame of mind.  As such, this is considered a new argument that merits consideration by the Board.

3.  On 1 November 1982, he enlisted in the Regular Army for a period of 3 years. 
On 9 August 1985, he reenlisted for 3 years.  On 8 January 1987, he was assigned to the 1st Battalion, 15th Field Artillery Regiment, in Korea.  He was 22 years old on 10 March 1987.

4.  On 27 October 1987, his duty status was changed to AWOL.  He surrendered to military authorities in Bayonne, NJ, on 13 January 1988.

5.  An incomplete DD Form 458 (Charge Sheet), dated 28 November 1987, shows the applicant was charged with being AWOL on 27 October 1987 and remained so absent.

6.  His separation processing package is not available for review.  The facts and circumstances pertaining to his discharge are not on file.

7.  On 11 March 1988, he was discharged for the good of the service in lieu of trial by court-martial under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed 5 years, 1 month, and 23 days of net active service that was characterized as under other than honorable conditions.  He had 76 days of lost time.

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

	a.  Chapter 10 provides that a member who commits 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.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser-included offense(s) therein contained which also authorizes the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  He was close to 22 years of age and had a little over 4 years in the Army when he was assigned to Korea.  Many Soldiers younger than him and with less experience completed their tours of duty in Korea and went on to receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

2.  Although his separation package was not available for review with this case, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge in order to be discharged under the provisions of chapter 10 of Army Regulation 635-200.  The applicant would have been required to consult with defense counsel and to have voluntarily and in writing requested separation from the Army in lieu of trial by court-martial. In doing so, he would have admitted he was guilty of the offense(s) he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

3.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  Therefore, the type of discharge and the reason for separation are appropriate considering the available facts of the case.

4.  He had 76 days of lost time during his second enlistment.  Therefore, his service is considered unsatisfactory.

5.  In view of the above, there is an insufficient basis to upgrade his discharge under other than honorable conditions to 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120009680, dated 29 November 2012.



      ___________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)                                         AR20130017567



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ABCMR Record of Proceedings (cont)                                         AR20130017567



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