BOARD DATE: 17 June 2014 DOCKET NUMBER: AR20130018414 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 that the discharge of his brother, a deceased former service member (FSM), be upgraded from under other than honorable conditions to honorable. He has power of attorney from the FSM’s widow. 2. The applicant states his brother was only 19 years old when he was assigned to duty in Germany. This was a trying experience for him because he was also married and had a newborn daughter. He worked long hours away from home on different shifts and in an environment that offered little flexibility. His wife was unable to find meaningful employment and because of their low income was forced to stay home with their daughter. He felt his brother's wife was poorly suited for this and the situation went downhill rapidly. However, he held his home life together until they returned to Fort Bliss, TX in 1990. The stress of military life, marriage, and parenting eventually overwhelmed his brother's wife and she left with his daughter. He was turned down for emergency leave so he went absent without leave (AWOL) to locate his daughter and to verify that she was safe. Within a couple of days, he was able to regain custody of his daughter, and he was in the process of trying to make arrangements for her when the military police (MP) showed up to take him into custody. 3. The applicant provides documents to show he is a person of interest. 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 4 March 1987, the FSM, at 19 years of age, enlisted in the Regular Army for 4 years. His date of birth was 25 June 1967. 3. He completed a tour of duty with the 3rd Battalion, 60th Air Defense Artillery (ADA) in Germany from 3 August 1987 to 28 October 1989 and was awarded the Army Achievement Medal. 4. On 4 December 1989, he was assigned to the 3rd Battalion, 6th ADA at Fort Bliss, TX. 5. On 5 June 1990, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from on or about 22 May to on or about 31 May 1990. 6. He departed AWOL on 19 June 1990 and surrendered to military authorities at Fort Knox, KY on 8 October 1990. 7. On 15 October 1990, court-martial charges were preferred against the FSM for being AWOL from on or about 19 June 1990 to on or about 8 October 1990. 8. On 15 October 1990, the FSM 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 did not submit any statements in his own behalf. In addition, 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. His commander and intermediate commander recommended his request for discharge be approved and that he receive an under other than honorable conditions discharge. 11. On 25 October 1990, the appropriate authority approved the FSM'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. 12. On 5 December 1990, the FSM was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He completed 3 years, 5 months, and 13 days of net active service this period that was characterized as under other than honorable conditions. He had 79 days of time lost. 13. 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. 14. 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, an Under Other Than Honorable Conditions Discharge Certificate was normally furnished 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. 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. The applicant contends the FSM went AWOL after his wife left him with his daughter. There are no documents or evidence to corroborate this contention. He was assigned to Germany at 20 years of age. The applicant stated after going AWOL the FSM was able to regain custody of his daughter within a couple of days and was making arrangements for her when the MPs showed up. This could have occurred during his period of AWOL from 22 - 31 May 1990, but it does not explain his period of AWOL from 19 June 1990 to 8 October 1990. 2. The FSM had sufficient time in service to be aware of alternative avenues he could have sought through his chain of command rather than going AWOL. During his second period of AWOL, the FSM turned 23 years of age. 3. The FSM’s age at time of enlistment was noted. However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges. Therefore, the age of the FSM cannot be used as a reason to change a properly issued discharge. 4. 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. 5. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu 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. 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. 7. In view of the above, there is an insufficient basis to upgrade his discharge to an honorable discharge or a general discharge 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 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) AR20130018414 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130018414 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1