RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 December 2006
      DOCKET NUMBER:  AR20060005602


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Donald Steenfott              |     |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 that his discharge under other than honorable
conditions be upgraded.

2.  The applicant states, in effect, that he went absent without leave
(AWOL) due to marital problems and custody issues over his children.  He
contends that while serving at Fort Lewis, Washington his wife felt
insecure when he was out in the field so she went back to New Jersey with
his children.  He contends that he tried to obtain custody of his children
utilizing his chain of command; however, no help was bestowed to him.  He
states that his next duty station was Alaska and that a custody battle
ensued.  He further states that he utilized his chain of command again and
was not helped or given emergency leave.  As a young Soldier he did what he
thought was best for his children (at that time) and went AWOL.  After he
secured his children and placed them in a safe and stable environment, he
turned himself in.

3.  The applicant provides a letter of support, dated 1 April 2006, from
his grandfather.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 April 1989.  The application submitted in this case is dated
1 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 limitations 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 on 24 July 1984 for a period of 3 years.  He
successfully completed One Station Unit Training in military occupational
specialty 13B (cannon crewman).  He reenlisted on 7 May 1987 for a period
of 6 years.  He attained the rank of sergeant on 8 July 1987.

4.  Records show the applicant received orders for assignment to Alaska in
May 1988.  On 10 August 1988, he requested a change of tour.  The available
records do not contain a response to this request.

5.  On 3 January 1989, the applicant went AWOL and returned to military
control on 26 February 1989.  On 8 March 1989, charges were preferred
against the applicant for the AWOL period.

6.  A Personnel Control Facility Interview Sheet, dated 8 March 1989, shows
the applicant reported that he went AWOL due to marital problems.  He
stated that when he was assigned to Alaska his family was unable to
accompany him; however, after he arrived in Alaska he put the paperwork in
so his family could accompany him.  He stated that the months passed and he
went through his chain of command about his paperwork but no one was able
to give him an answer and his wife got impatient and left him.

7.  On 9 March 1989, the applicant consulted with counsel and requested
discharge for the good of the service under the provisions of Army
Regulation 635-200, chapter 10.  He indicated in his request that he
understood he might be discharged under conditions other than honorable and
furnished an other than honorable discharge; that he might be ineligible
for many or all benefits administered by the Veterans Administration; that
he would be deprived of many or all Army benefits; and that he might be
ineligible for many or all benefits as a veteran under both Federal and
State law.  He also acknowledged that he might expect to encounter
substantial prejudice in civilian life because of an other than honorable
discharge.  He elected not to make a statement in his own behalf.

8.  On 5 April 1989, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

9.  Accordingly, the applicant was discharged under other than honorable
conditions on 26 April 1989 under the provisions of Army Regulation 635-
200, chapter 10, for the good of the service, in lieu of court-martial.  He
had served a total of 4 years, 7 months, and 8 days of total active service
with 53 days of lost time due to AWOL.

10.  In support of his claim, the applicant provided a letter from his
grandfather, a retired Air Force sergeant.  He attests to the applicant’s
family problems and states that the applicant’s children were not being
properly cared for while he was in the military.  He attests that the
applicant sought assistance from his unit but this was to no success.  He
states that he [the grandfather] was away from New Jersey and could not
physically help with the children, that the applicant’s wife was living in
the street, and that the children were being placed anywhere they could
stay.  He requests that the Board take into consideration the circumstances
under which the applicant went AWOL (welfare of his children).

11.  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.

12.  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.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

13.  Army Regulation 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 (emphasis
added), 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.

14.  Army Regulation 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 the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant’s contention that he
submitted the paperwork to have his family accompany him in Alaska (his 10
August 1988 request for change of tour).  However, there is no evidence of
record which shows this request was approved or denied by his chain of
command.  There is no other evidence the applicant sought assistance from
his chain of command or chaplain on a way to resolve his problems within
established Army procedures prior to going AWOL.  His claim that marital
problems caused him to go AWOL does not provide a sufficient basis for
upgrading his discharge.

2.  Since the applicant’s record of service included 53 days of lost time,
his record of service was not satisfactory and did not meet the standards
of acceptable conduct and performance of duty for Army personnel.
Therefore, the applicant's record of service is insufficiently meritorious
to warrant a general or honorable discharge.

3.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.  He had an opportunity to submit a statement in which he could
have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 26 April 1989; therefore, the time for the
applicant to file a request for correction of any injustice expired on 25
April 1992.  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

LS_____  _PM_____  _DS_____  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.



                                  ___Linda Simmons______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005602                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061205                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19890426                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service, in lieu of |
|                        |court-martial                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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