MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 07 MARCH 2002
         DOCKET NUMBER: AR2001064005


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

Mr. Carl W. S. Chun		Director
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Regan K. Smith		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that his discharge be upgraded and that the reason for his discharge be changed to hardship. The applicant states that he returned "back to base at Ft. Knox instead of returning to Germany." He notes that he was unable to "plead" his case for a hardship discharge at the time and that they did not take into consideration that he did return to a military base. He states that his separation has "haunted" him all his life and that he regrets his decision not to return to Germany but felt at the time it was "in the best interest of [himself] and [his] family not to return." He submits no evidence in support of his request.

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD: The applicant's military records show:

He entered active duty on 18 February 1977, at the age of 20, with 12 years of formal education. At the time he entered active duty he was married. He successfully completed basic and advanced individual training and in June 1977 was assigned to Fort Hood, Texas. He was promoted to pay grade E-3 in August 1977.

On 25 January 1978, while still assigned to Fort Hood, the applicant departed AWOL (absent without leave). He returned to military control on 30 January 1978 and was punished under Article 15 of the UCMJ (Uniform Code of Military Justice). His punishment consisted of seven days of extra duties.

In September 1978 the applicant was reassigned to Germany. His family did not accompany him. On 16 October 1978 the applicant was seen at the mental hygiene clinic. The evaluating health care professional noted that the applicant reported being depressed, that he was going crazy, and that he could not "take the Army any more." He reported feeling like he was being "screwed over" and that the Army was not what he expected. The health care professional concluded the applicant was suffering from mild depression with a stress reaction to marital discord and financial problems. The health care professional recommended the applicant be considered for an administrative separation under the Expedition Discharge Program. There is no indication that an administrative separation was pursued at the time or any evidence of any additional visits to the mental hygiene clinic.




On 4 April 1979 the applicant departed AWOL. He was dropped from the rolls of the Army as a deserter on 3 May 1979. He was apprehended by military authorities on 7 August 1982 and ultimately assigned to the Personnel Control Facility at Fort Dix, New Jersey.

While at the Personnel Control Facility, the applicant stated that he had departed AWOL because his father had an enlarged heart and he was expecting him to pass away. He stated that he tried to "get out on a hardship discharge to help work on the farm but they would not let [him].” The Personnel Control Facility report confirms the applicant was apprehended and returned to military control at Fort A.P. Hill, Virginia. He was living in Ladysmith, Virginia at the time of apprehension.

On 13 August 1982 the commander of the Personnel Control Facility initiated action to administratively separate the applicant for misconduct under the provisions of Army Regulation 635-200, chapter 14. The applicant consulted with counsel and waived his attendant rights, including the right to submit a statement in his own behalf.

The approval authority, a major general, approved the proposed separation action under the provisions of Army Regulation 635-200, paragraph 14-23, waived trial by court-martial on a charge of desertion or AWOL, and directed that the applicant be issued an Under Other Than Honorable Condition Discharge Certificate.

On 27 September 1982 the applicant was discharged.

Army Regulation 635-200, in effect at the time, provided for the administrative separation of soldiers for “hardship” when such separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Separation of enlisted personnel because of hardship may be granted when conditions have arisen or have been aggravated to an excessive degree since entry on active duty, conditions are not of a temporary nature, every reasonable effort has been made to alleviate the hardship conditions without success, and discharge or release from active service is the only readily available means of eliminating or materially alleviating the hardship condition. Individuals were required to submit an application, with specific evidence which supported their request, through their appropriate chain of





command to a designated approval authority. There is no evidence in available records that the applicant ever submitted an application for a hardship discharge.

Army Regulation 635-200, paragraph 14-23, stated that absentees or deserters who were returned to military control could be administratively discharged if it was determined by an administrative review of all facts that there was a preponderance of evidence to support a determination of desertion or AWOL, that the unauthorized absence was continuous for 1 year or longer, that retention was not in the considered desirable or in the national interest, and that trial by court-martial on a charge of desertion or AWOL had been waived. Individuals discharged under this provision were issued an Under Other Than Honorable Discharge Certificate (DA Form 794A).

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, and the applicant has not submitted any, which would serve as a basis to upgrade his discharge or to change the reason of his discharge to “hardship.” His conduct prior to departing AWOL in 1979 was not so meritorious so as to warrant an upgrade of his discharge based on equity.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 27 September 1982, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 27 September 1985.

The application is dated 19 September 2001 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by



law. Prior to reaching this determination the Board looked at the applicant's entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__RVO _ __JPI___ __RKS __ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001064005
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020307
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	142,00
2.
3.
4.
5.
6.