IN THE CASE OF:  	  

		BOARD DATE:  7 July 2015    	  

		DOCKET NUMBER:  AR20140020762 


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 to an honorable discharge.  He requests a personal hearing.

2.  The applicant states he did not return from leave because of mental anguish due to his father's death.  A month before his father passed away the Red Cross sent a letter to his unit requesting that he be granted the privilege to be by his side the 30 days before he died.  His unit denied the request.  When he was finally granted leave his father had passed away.  It has been 24 years since his discharge and he has been punished in more than one way for leaving and not returning to his post.  He lost his father and is now denied medical and all benefits.  

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 2 May 1989, he enlisted in the Regular Army for 3 years.  On 21 August 1989, he was assigned to Battery C, 1st Battalion, 7th Field Artillery at Fort Drum, NY.

3.  On 25 June 1991, his status was changed from ordinary leave to absent without leave (AWOL).

4.  On a DA Form 4384 (Commander's Report of Inquiry/Unauthorized Absence), dated 25 July 1991, his commander indicated marital strife as a possible contributing factor causing his AWOL.  On 25 July 1991, the applicant was dropped from the rolls.

5.  On 27 January 1993, the applicant was apprehended by civilian authorities in Phoenix, AZ and returned to military authorities at Fort Huachuca, AZ.  

6.  An interview was conducted by a captain when he arrived at the Personnel Control Facility (PCF) at Fort Ord, CA.  

	a.  The PCF was informed by Criminal Investigation Command (CID) Fort Ord, CA that a possible investigation on the applicant might still be pending at Fort Drum for mail theft.  Fort Drum CID informed the PCF that an investigation was done on stolen mail and the applicant was a suspect but the case was closed.  He was not charged with any wrong doing nor was he wanted for questioning.

	b.  The applicant claimed he was having marital problems and was receiving no support from his chain of command.  His father had recently become ill and with pressures at work, his troubled marriage, and a perception of no command support, he decided to go AWOL.

7.  On 9 February 1993, court-martial charges were preferred against the applicant for being AWOL from on or about 25 June 1991 and he remained absent until apprehended on or about 27 January 1993.

8.  On 10 February 1993, 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

9.  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

10.  He submitted a statement in his own behalf.  He stated he felt that he was a good Soldier and if his chain of command had tried to help him he would have been able to complete his enlistment.  He was wrongfully accused of larceny of mail.  It was never proven by CID.

11.  On 22 February 1993, his commander recommended approval of his request for discharge.  The commander stated:

* the applicant consulted an attorney and understood the consequences of his request
* his pattern of behavior indicated that retention was neither practical nor desirable
* he had no potential for rehabilitation

12.  On 24 February 1993, 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.

13.  On 12 March 1993, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He completed 1 year, 8 months, and 24 days of net active service that was characterized as under other than honorable conditions.  He had 588 days of time lost.

14.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 18 February 2005, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

15.  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.  

16.  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 Army Board for Correction of Military Records (ABCMR).  

	a.  Paragraph 2-2 states the ABCMR will decide cases on the evidence of record. It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing in 10 USC 1034 and DODD 7050.6) or request additional evidence or opinions.

	b.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he didn't return from leave because of mental anguish due to the death of his father.  He makes no mention of his marital problems.  His unit commander cited marital strife as a contributing factor in him going AWOL.  In his statement at the time of his request for discharge the applicant stated if his command had tried to help him he would have been able to complete his enlistment.  However, he does not indicate what type of help he required.  He also mentioned that he was wrongfully accused of larceny of mail, but it was never proven.  The interview results at PCF, Fort Ord indicate that an investigation was done on stolen mail and he was a suspect but the case was closed.  The applicant was not charged with any wrongdoing nor was he wanted for questioning.

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 588 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.  Further, there is insufficient evidence to support a conclusion that a formal hearing is necessary to serve the interest of justice in this case.


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)                                         AR20140020762



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ABCMR Record of Proceedings (cont)                                         AR20140020762



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