RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      11 October 2006
      DOCKET NUMBER:  AR20060004795


      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             |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. David R. Gallagher            |     |Member               |
|     |Mr. Roland S. Venable             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge be upgraded to
honorable.

2.  The applicant states, in effect, that he was not AWOL (absent without
leave).  He was in the Navy hospital.  He adds that he deserves an
honorable discharge because he was a good Soldier.

3.  The applicant provides a copy of his DD Form 214, Certificate of
Release or Discharge from Active Duty; a FPMR 101-11.806-8, Clinical Record
– Doctor's Progress Notes; and a SF (Standard Form) 600, Chronological
Record of Medical Care, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 28 August 1980.  The application submitted in this case is
dated 21 March 2006.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the US Army Reserve, Delayed Enlistment
Program, on 30 March 1977.  On 5 August 1977, the applicant enlisted in the
Regular Army for a period of 3 years.  The applicant successfully completed
basic combat training at Fort Jackson, South Carolina, and his advanced
individual training at Fort Benning, Georgia.  On completion of his
advanced training, he was awarded the military occupational specialty 11B,
Light Weapons Infantryman.

4.  On 1 January 1979, the applicant was promoted to the rank and pay
grade, Specialist Four, E-4.  On 4 September 1979, the applicant was
laterally appointed to the rank of Corporal.  This would be the highest
rank and pay grade the applicant would hold while he served on active duty.

5.  On 14 June 1979, the applicant was reassigned to Germany.  He was
assigned to Company C, 2nd Battalion, 48th Infantry, 3rd Armored Division.

6.  The applicant was recommended for and was placed on the E-5 promotion
standing list for Headquarters, 2nd Battalion, 48th Infantry, on 1 October
1979.

7.  DA Forms 4187, Personnel Action, on file in the applicant's records
show the following duty status changes:

      a.  the applicant's status was changed from ordinary leave to absent
without leave (AWOL) on 31 December 1979;


      b.  the applicant's status was changed from AWOL to hospital with an
effective date 8 January 1980;

      c.  the applicant's status was changed from hospital to AWOL on
24 February 1980;


      d.  the applicant's status was changed from AWOL to present for duty
in his unit on 6 March 1980; and


      e.  the applicant's status was changed from present for duty to AWOL
on 18 April 1980 and he was dropped from the rolls of his organization on 1
May 1980.  On 18 April 1980, the applicant was given an order by a chief
warrant officer to return to his unit.  In addition, he was provided a
transportation authorization.  The applicant failed to return to his unit.


      f.  the applicant's status was changed from dropped from the rolls to
present for duty at Fort Bragg, North Carolina, on 21 May 1980.  The
applicant had been apprehended by civil authorities in Mobile, Alabama, at
1515 hours, 21 May 1980 and had been transported to Fort Rucker and
processed pending transportation to Fort Benning, Georgia, to the
confinement facility, then to Fort Bragg.

8.  On 11 June 1980, charges were preferred against the applicant for
absenting himself without authority from his unit on 18 April 1980 and
remaining AWOL until on or about 21 May 1980 and for unlawfully disobeying
the lawful order of a warrant officer on 18 April 1980 to return to his
parent unit.

9.  On 11 June 1980, the applicant voluntarily submitted a request for
discharge for the good of the service.  In his request the applicant stated
he understood he could request discharge for the good of the service
because charges had been filed against him under the Uniform Code of
Military Justice (UCMJ), which could
authorize the imposition of a bad conduct or dishonorable discharge.  He
added that he was making his request of his own free will and had not been
subjected to coercion whatsoever by any person.  The applicant stated he
had been advised of the implications that were attached to his request and
that by submitting his request, he acknowledged that he was guilty of the
charge against him or of a lesser or included offense which also authorized
the imposition of a bad conduct or a dishonorable discharge.  Moreover, he
stated that under no circumstances did he desire further rehabilitation for
he had no desire to perform further military service.

10.  Prior to completing his request for discharge for the good of the
service, the applicant was afforded the opportunity to consult with
counsel.  He consulted with counsel on 11 June 1980 and was fully advised
of the nature of his rights under the UCMJ.  Although he was furnished
legal advice, he was informed that the decision to submit a request for
discharge for the good of the service was his own.

11.  The applicant stated that he understood that if his request were
accepted, he could be discharged under other than honorable conditions and
furnished an under other than honorable conditions discharge certificate.
He was advised and understood the effects of an under other than honorable
conditions discharge and that issuance of such a discharge could deprive
him of many or all Army benefits that he might be eligible for, that he
might be ineligible for many or all benefits administered by the Veterans
Administration [now the Department of Veterans Affairs], and that he might
be deprived of his rights and benefits as a veteran under both Federal and
state law.  He also understood that he could expect to encounter
substantial prejudice in civilian life because of an under other than
honorable conditions discharge.

12.  The applicant was advised that he could submit a statement in his own
behalf, which would accompany his request for discharge.  The applicant
opted not to submit a statement in his own behalf.

13.  The applicant underwent a mental status evaluation on 11 June 1980.
The applicant's behavior was found to be normal.  He was found to be fully
alert and fully oriented.  His mood was normal, his thinking process was
clear, and his thought content was normal.  The evaluating psychiatrist, an
Army medical corps officer, found him to be mentally responsible,
considered to have the mental capacity to understand and participate in
separation proceedings, and to meet the retention standards of AR 40-501,
Chapter 3.  The applicant was found to have no significant mental illness.


14.  On 11 June 1980, the applicant waived a physical examination.  The
applicant's statement states he did not want a physical examination prior
to his discharge under the provisions of AR 635-200, Chapter 10.

15.  The applicant commander interviewed him on 12 June 1980, in
conjunction with processing his request for discharge for the good of the
service.  He stated to the commander that he understood the nature of the
interview and the consequences of an under other than honorable conditions
discharge but stated that his approximately 88 days of AWOL time were
caused by family problems.  He stated that he was assigned to Germany and
came home on leave after his wife had a child.  He had turned himself in to
get a discharge because he wanted nothing more to do with the Army and
could make more money as a civilian truck driver.  He stated he did not
know how to convince anyone that he would go AWOL again if necessary.

16.  On 13 August 1980, the applicant applied for and was given authority
for excess leave pending approval of his request for discharge for the good
of the service.

17.  The applicant's chain of command unanimously recommended approval of
his request for discharge for the good of the service and on 18 August
1980.  The applicant was discharged in absentia on 28 August 1980.

18.  The applicant was discharged with an under other than honorable
conditions discharge, in the rank and pay grade of Private, E-1, on 28
August 1980, under the provisions of Army Regulation (AR) 635-200, Chapter
10, for the good of the service.

19.  On the date of his discharge, the applicant had completed 2 years,
11 months, and 1 day, creditable active military service.

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

21.  AR 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, at any time
after the charges have been preferred, a request for discharge for the good
of the service,
in lieu of trial by court-martial.  A discharge under other than honorable
conditions is normally considered appropriate, but the separation authority
may direct a general discharge or an honorable discharge if such is merited
by the Soldier's overall record and if the Soldier's record is so
meritorious that any other characterization clearly would be improper.

22.  AR 635-200, paragraph 3-7a, provides that 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.  Whenever there
is doubt, it is to be resolved in favor of the individual.

23.  AR 635-200, paragraph 3-7b, provides that 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.  A
characterization of under honorable conditions may be issued only when
the reason for separation specifically allows such characterization.

24.  The applicant stated in his application to the Board that he was not
AWOL and that he was in the Navy hospital and deserves an honorable
discharge.  However, a DD Form 261, Report of Investigation – Line of Duty
and Misconduct Status, shows the applicant shot himself in the left foot
with a 22 rifle on 5 January 1980 while he was AWOL.  The applicant's
injury was determined to be not in the line of duty in accordance with
paragraph 2-3 and 2-7, AR 600-33.  According to these paragraphs, "any
person who is injured while absent without leave must be held 'not in the
line of duty.'"  The applicant had been declared to be AWOL as of 31
December 1979 by his unit of assignment.

25.  In his application, the applicant stated that he was a good Soldier
and he deserves an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's allegation that he was not AWOL and that he was in the
Navy hospital is contradicted by the evidence.  The evidence shows the
applicant's unit authorized him ordinary leave that expired on 30 December
1979.  He failed to
return to his unit in Germany on the expiration of this leave and on 31
December 1979, his unit reported him AWOL.

2.  The applicant shot himself in the left foot, on 5 January 1980, while
he was AWOL.  He was admitted to the Naval hospital in Pensacola, Florida,
for treatment for this gunshot wound on 8 January 1980.  After he was
released from the hospital, on 24 February 1980, he was ordered to return
to his unit in Germany.  He continued to be AWOL and did not report to his
unit until 6 March 1980.

3.  The applicant again departed AWOL from his unit on 18 April 1980 and
remained AWOL until civil authorities in Mobile, Alabama, apprehended him
on 21 May 1980 and returned him to military control.

4.  His contention that he was a good Soldier has some truth; however,
through his actions, he violated the trust and confidence that his chain of
command had shown in him.  His conduct and repeated acts of being reported
AWOL and disobeying lawfully given orders are not the characteristics of a
good Soldier.  Therefore, based on the evidence, the applicant does not
deserve an honorable discharge.

5.  On 11 June 1980, charges were preferred against the applicant for
absenting himself without authority from his unit in Germany, and remaining
AWOL until on or about 21 May 1980 and for unlawfully disobeying the lawful
order of a warrant officer to return to his parent unit.

6.  On 11 June 1980, the applicant voluntarily submitted a request for
discharge for the good of the service.

7.  The evidence shows the applicant was discharged under the provisions of
AR 635-200, Chapter 10, for the good of the service.  In connection with
such a discharge, the applicant was charged with the commission of an
offense punishable under the UCMJ with a punitive discharge.  Procedurally,
the applicant was required to consult with defense counsel, and to
voluntarily, and in writing, request separation from the Army in lieu of
trial by court-martial.  In doing so, the applicant admitted guilt to the
stipulated offenses under the UCMJ.

8.  The evidence shows that all requirements of law and regulation were met
and the rights of the applicant were fully protected throughout the
separation process.
The characterization of service for this type of discharge is normally
under other than honorable conditions and the evidence shows that the
applicant was aware of that prior to requesting discharge.  It is believed
that the reason for discharge and the characterization of service were both
proper and equitable.

9.  The applicant’s entire record of service was reviewed.  The record does
confirm that the applicant's chain of command felt he was a good Soldier;
however, he violated the trust and confidence that his chain of command had
shown in him.  The applicant had been promoted to Specialist Four and was
laterally appointed to Corporal and was on a standing promotion list to pay
grade E-5.  However, on 12 June 1980, in an interview with him, it was
learned his approximately 88 days of AWOL were due to personal family
problems that he experienced while on leave.  His conduct suggests that he
decided AWOL was the solution rather than his addressing these problems by
seeking counseling by a chaplain, medical authorities, or other resources
available to assist Soldiers with family problems.  His attitude towards
Army service also changed.  He stated to his commander that he would
continue to go AWOL and did not know how to convince anyone he did not want
anything more to do with the Army.  He did not desire to continue serving
in the Army and did not want rehabilitation.

10.  The applicant's conduct and his announcement that he would continue to
go AWOL, and his changed attitude towards the Army due to his family
problems diminished the overall quality of the service that should be
expected of a (then) potential noncommissioned officer.  Had he continued
to serve honorably and had he been promoted to the rank of a
noncommissioned officer, he would have been in a position to counsel with
subordinate Soldiers with similar personal family problems.  The potential
that he had once displayed and which had been recognized by members of his
chain of command was no longer creditable to him.

11.  In order to justify correction of a military record, the applicant
must show, 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.

12.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his under other than honorable
conditions discharge.

13.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 August 1980; therefore, the time
for
the applicant to file a request for correction of any error or injustice
expired on 27 August 1983.  However, the applicant did not file within the
3-year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________   GRANT FULL RELIEF

________  ________  ________   GRANT PARTIAL RELIEF

________  ________  ________   GRANT FORMAL HEARING

___PM___   __DRG_  _RSV__     DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ___Patrick H. McGann, Jr.___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060004795                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.  394                 |144.0133                                |
|3.  689                 |144.7000                                |
|4.  708                 |144.7100                                |
|5.                      |                                        |
|6.                      |                                        |


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