IN THE CASE OF:	   

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140012700 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states:

	a.  While stationed in Korea he had some serious marital problems and went on an early home trip at the request of his commanding officer and first sergeant. His wife was pregnant and was in need of surgery at the time.  When he got home he found out he was not the father.  He then had to move his family because someone was trying to harm his family because of some illegal situation his wife was getting into.  On the way to return to his command he found that his wife had stolen his credit card and took all of the money off his card and it had nothing left on it.  

	b.  He called his commander in Korea and explained the situation and told him he was trying to do all that he could to get himself back.  His commander told him he would work out another week of leave for him to get things together and try to come up with the money to get back.  However, he was unable to return in the set amount of time.  It was not his intention not to return to his duty station, but it was his intention to make sure that nothing was wrong with his family. 

3.  The applicant provides no additional 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.  On 5 July 1995, he enlisted in the Regular Army for 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13F (Fire Support Specialist).

3. On 8 December 1995, he was assigned to Headquarters and Headquarters Battery, 818th Field Artillery, 2nd Infantry Division in Korea.

4.  On 4 April 1996, he went absent without leave (AWOL) and on 4 May 1996, he was dropped from the rolls.

5.  On 20 August 1996, he was apprehended by civil authorities in Fontana, CA.  He was returned to military control and transferred to Battery A, Personnel and Support Battalion, Fort Sill, OK.

6.  On 28 August 1996, court-martial charges were preferred against the applicant for being AWOL from on or about 4 April 1996 to on or about 20 August 1996.

7.  On 29 August 1996, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  He acknowledged he understood the elements of the offense he was being charged with and that he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he could be issued an under other than honorable conditions discharge
* advised he could submit any statements he desired in his own behalf
8.  He did not submit any statements in his own behalf.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He also acknowledged he understood he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Department of Veterans Affairs benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

9.  On 18 October 1996, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial.  He directed his reduction to private/pay grade E-1 and that he receive an under other than honorable conditions discharge.

10.  On 15 November 1996, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 11 months and 28 days of net active service this period that was characterized as under other than honorable conditions.  He had 138 days of time lost.

11.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the administrative 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.  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.  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.  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 he was unable to return to his unit in Korea because he lacked funds due to his wife having maxed out his credit card.  However, he provided no substantive evidence to support his contention.

2.  He was charged with an offense punishable by a punitive discharge.  He consulted with counsel, voluntarily admitted guilt to the offense or lesser offenses included, and requested discharge in lieu of court-martial.  He acknowledged in his request for discharge that he could receive an under other than honorable conditions discharge.  Therefore, his request for discharge was administratively correct and in conformance with applicable regulations.

3.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  A discharge under other than honorable conditions is normally considered appropriate when a member is separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

4.  The fact that he was apprehended by civilian authorities after 138 days of being AWOL raises doubt as to his intent to return to military jurisdiction of his own volition.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade his under other than honorable conditions discharge to either an honorable or a general discharge.

5.  In view of the above, there is an insufficient basis to upgrade the characterization of his service to general or honorable.

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)                                         AR20140012700



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ABCMR Record of Proceedings (cont)                                         AR20140012700



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