IN THE CASE OF:  	  

		BOARD DATE:  19 March 2015	  

		DOCKET NUMBER:  AR20140014227 


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 under than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states he was not separated of his own free will.  The Army received a request from the American Red Cross asking that he be released from the service due to his pregnant wife going through a nervous breakdown because she was being displaced from home and had no place to live.  She lived with her alcoholic father who decided to kick her out of the house.  She had to go to the Red Cross for shelter and they contacted his unit and requested that due to his wife's condition that he be released from service (i.e., given emergency leave).  He was unable to return to service due to his wife giving birth to his daughter and he had to continue to provide for his wife and child by continuing to work.

3.  He has been working for the last 9 years as a Naval Security Force (NSF) officer at the Naval Support Activity Philadelphia and as a NSF supervisor captain for the last 4 years.  He has an interest in escalating his career to another level and needs this upgrade to a minimum of a general discharge.

4.  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 24 May 1985, he enlisted in the Regular Army for 3 years.  He completed basic combat training.  He did not complete advanced individual training (AIT).

3.  He departed absent without leave (AWOL) on 31 July 1985 and surrendered on 9 September 1985 at Fort Dix, NJ.  He was assigned to Company A, U.S. Army Personnel Control Facility (PCF), Fort Dix.

4.  A PCF interview sheet indicates that when he was asked why he went AWOL he stated he went home on emergency leave because his wife was on the verge of a nervous breakdown because of home and family problems.  While at home his marriage was falling apart and his wife and daughter had no place to stay.  He was under a great deal of pressure and he could not abandon his family in the crisis.  He tried talking to the Red Cross about his problem but he did not receive much help.

5.  On 11 September 1985, court-martial charges were preferred against the applicant for being AWOL from on or about 31 July 1985 to on or about 
9 September 1985.

6.  On 11 September 1985, he voluntarily requested discharge for the good of the service.  He acknowledged he understood the offense he was charged with and he was:

* making the request of his own free will
* guilty of the offense with which he was charged
* advised he could submit any statements he desired in his own behalf with his request and he indicated he was not submitting any such statements
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate

7.  In addition, he acknowledged he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions and he understood he may be ineligible for many or all Veterans Administration (VA) benefits under Federal or State laws.

8.  On 9 October 1985, the appropriate authority approved his request for discharge for the good of the service.  He directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 19 November 1985, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Enlisted Personnel Separations) for the good of the service in lieu of trial by court-martial.  He had completed 4 months and 18 days of net active service that was characterized as under other than honorable conditions.  He had 38 days of lost time.

10.  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.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled 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.  Whenever there was doubt, it was to be resolved in favor of the individual.

	c.  A general discharge was 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.  He contends he went AWOL due to his wife's nervous condition at the time and she had no place for her and their daughter to live.  His length of AWOL was due to his having to continue to provide for his wife and daughter by continuing to work.  However, he has provided no substantive evidence to support his contention.  

2.  He contends he was separated not due to his own free will.  However, in order to be discharged under the provisions of Chapter 10 of Army Regulation 635-200 an individual must request such a discharge.  The applicant's request for discharge specifically stated he was making his request of his own free will and that he had not been subjected to any coercion whatsoever in making his request.  Therefore, his contention is not supported by the evidence of record.

3.  During his processing for discharge the applicant had the opportunity to submit statements in his own behalf.  He was advised of this right and he declined to submit any statements that may have provided mitigating factors concerning his period of AWOL.  

4.  He voluntarily requested discharge and admitted guilt to the offense for which he was charged.  He also acknowledged that he understood he could receive a discharge under other than honorable conditions and that he may be ineligible for many or all veterans benefits.

5.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

7.  The applicant's post-service accomplishments are noted.  However, they are insufficient justification to change a properly-issued discharge.

8.  He had 38 days time lost and failed to complete AIT.  Therefore, his service is determined to be unsatisfactory.  There is insufficient evidence on which to base an upgrade of his discharge to either a general discharge or an honorable discharge.


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)                                         AR20140014227





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ABCMR Record of Proceedings (cont)                                         AR20140014227



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