PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           5 April 2001                   
	DOCKET NUMBER:   AR2001051441

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Harry B. Oberg		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge under other than honorable conditions (UOTHC) be upgraded.

3.  The applicant states that he was told by the Judge Advocate General’s officer that he could request an upgrade of his discharge after 3 years.  He provides no supporting evidence.

4.  The applicant’s military records show that after having had prior service in the U. S. Army Reserve, he enlisted in the Regular Army on 5 July 1979.  He was promoted to Sergeant, E-5 on 21 November 1981.  He was honorably discharged on 13 January 1982 for the purpose of immediately reenlisting on 14 January 1982 for 6 years.

5.  On 17 February 1984, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) for the period   22 November 1983 to on or about 16 February 1984. 

6.  On 27 February 1984, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected to submit a statement in his own behalf.  He stated that he went AWOL while en route to Germany because his mother had high blood pressure problems and had a nervous breakdown and his sisters wanted her to go to a mental institution.  He did not want his mother in a situation like that.  He tried to take a 45-day leave before leaving for Germany so he could take care of the problem but his commander and first sergeant said “no.”  He also was supposed to start his leave on 14 October 1983 but they did not let him sign out until 20 October 1983, giving him less time to solve his problem.

7.  On 13 March 1984, the appropriate authority approved the request and directed the applicant receive a discharge under other than honorable conditions.

8.  On 17 March 1984, the applicant waived a separation physical examination.

9.  On 5 April 1984, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 4 years, 6 months, and 7 days of creditable active service for that period and had 85 days of lost time. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that 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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

11.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically stated that no factors should be established which would require automatic change or denial of a change in discharge.

12.  The Department of Veterans Affairs (VA), in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the service.

CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  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. There is no indication that the request was made under coercion or duress.

3.  At this late date the Board will not second-guess the commander’s decision not to grant the applicant 45 days leave or to change the start date of his leave.  While the Board sympathizes with his reasons for wanting a long leave to help his mother, the Board notes that his AWOL for this time totaled 85 days, more than the 45 days leave he was requesting.  In addition, the applicant was a noncommissioned officer who should have known there were other ways to attempt to resolve his problem.  There is no evidence to show he requested a compassionate reassignment or a temporary deferment, administrative actions which could have been requested at any time prior to his departure for Germany. 

4.  While the Board takes cognizance of the applicant’s stated personal problems, this factor does not warrant the relief requested and it would not be appropriate to change the records to show that the applicant was discharged honorably from the reenlistment commencing on 14 January 1982.  However, it appears that his honorable discharge of 13 January 1982 should be considered as having been issued as a complete and unconditional separation.

5.  The circumstances of the applicant’s honorable discharge on 13 January 1982 may work an injustice upon him by depriving him of consideration for certain VA benefits or by failing to acknowledge that his preceding period of service was honorable.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:  

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 13 January 1982.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__jh____  __cla___  __hbo___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			June Hajjar
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001051441	
SUFFIX		
RECON		
DATE BOARDED	20010405	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19840405	
DISCHARGE AUTHORITY	AR 635-200, ch 10 	
DISCHARGE REASON	A70.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.