RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060008805 


	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. W. W. Osborn, Jr.

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Edward E. Montgomery

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 1979 discharge for the good of the service in lieu of trial by court-martial be upgraded. 

2.  The applicant states that he is in desperate need of medical care from the Department of Veteran Affairs (VA).  

3.  The applicant provides his personal statement; a partial copy of his service record, including commendations and awards; copies of his deceased father’s medical records; certificates of recent civilian training and job accomplishments; and a release for his VA medical records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel offered no evidence or argument beyond what was submitted with the application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 17 October 1979, the date of the final discharge.  The application submitted in this case is dated 13 June 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 29 November 1972 at the age of 17.  He advanced to specialist four (E-4), was awarded the Armed Forces Expeditionary Medal for service in Korea and was discharged to reenlist on 29 August 1974.  He reenlisted the next day.  In November 1975, he was promoted to sergeant (E-5) and awarded the Good Conduct Medal.  On 23 April 1976, he was awarded the Army Commendation Medal.  He reenlisted again on 31 May 1977.  On 28 November 1978 he received the second award of the Good Conduct Medal.  


4.  Throughout his military career, he received numerous letters and certificates of appreciation, achievement and proficiency.  He also completed several military training courses, earned his GED (General Educational Development) diploma, and took some college courses.  

5.  The applicant was AWOL from 10 April 1979 to 18 September 1979.  When charges were preferred the applicant consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial.  His request acknowledged that he was guilty of the charge against him or of a lesser included offense for which he could also receive a punitive discharge.  He also acknowledged that he understood the consequences of the other than honorable discharge which he might receive.  This included the loss of veteran’s benefits administered by the VA and the various states.   

6.  The applicant also submitted a personal request for a general discharge.  He cited the quality of his service and stated that he had been AWOL because his father had suffered a series of serious heart attacks.  He stated that his father would never get well and that he was “seriously needed at home.”

7.  The commander of the Personnel Control Facility wrote that he personally interviewed the applicant and stated that the applicant was well aware of the consequences of the under other than honorable conditions discharge but wished to be discharged anyway.  The applicant had related that the AWOL was the result of his father’s severe heart problems and his mother’s inability to provide care.  The applicant reported that he had returned home with the intention of obtaining the supporting documentation for a hardship discharge.  He obtained that paper work, but never returned to his unit.  He had indicated that he would not stay in the Army under any condition.  The commander noted that the applicant had surrendered to civilian authorities and recommended discharge under other than honorable conditions.

8.  The separation authority approved the applicant’s request and directed he be reduced to pay grade E-1 and discharged under other than honorable conditions.

9.  On 17 October 1979 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10.  He had 6 years, 5 months, and 12 days total creditable service and 160 days lost time. 

10.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred, submit 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.  

11.  There is no indication that the applicant applied to the Army Board discharge Review Board for an upgrade of his discharge during the 15 year statute of limitation. 

12.  The statement the applicant submitted with this application relates that, when he was 10 years old, he and his four siblings were placed in foster care by the State.  He was the only one who ever returned home.  By the time he came home on leave, he already knew that both his parents had acute alcohol problems but he had no idea of the seriousness of his father’s medical problems. He was the only one available to help.  He called his company commander and was told to return, but he felt he could not.  He tried to gather the documentation that the Red Cross told him he needed for a hardship discharge.  However, once he got it he did not know what to do with it.  After he was escorted to Fort Bragg he felt that the lieutenant listened to his problems, but nothing could be done.  If he had been punished but not discharged, he would have simply gone AWOL again.  He could think of nothing that would help his parents except being home. He accepted the discharge.  His father died about 13 months later.  Now he has cancer.  His doctors put his life expectancy at about a year.  He does not accept that estimate because he intends to live far longer.

13.  His father’s July 1977 medical records indicate heart disease, alcoholism, and alcoholic liver disease.  He died in February 1981 from cardiac arrest due to coronary artery disease.

14.  Title 38, United States Code, sections 310 and 33, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  It can also provide care for non-service related conditions.
In accordance with its own policies and regulations the VA can also determine if an individual who had served successfully, reenlisted early and then received a less other than honorable discharge is eligible for benefits by virtue of the earlier honorable service.







DISCUSSION AND CONCLUSIONS:

1.  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.

2.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

3.  The available documents show that his father had serious health problems and the applicant’s description of the general situation is accepted.  However, there is no available evidence or argument that the applicant’s AWOL was a viable solution.

4.  The applicant’s current health condition is noted and is unfortunate but it is not relevant to the issue under consideration and does not provide a basis for upgrading the discharge.  Furthermore, the VA can provide whatever benefits it deems appropriate under its own regulations.

5.  The applicant’s service and accomplishments are noted but they do not outweigh the offense of a noncommissioned officer going AWOL because he chose to place other considerations ahead of his sworn duty.    

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 October 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
16 October 1982.  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

__JEA___  _JLP____  __EEM__  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.




__James E. Anderholm___
          CHAIRPERSON




INDEX

CASE ID
AR20060008805
SUFFIX

RECON

DATE BOARDED
20070206
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19791017
DISCHARGE AUTHORITY
AR635-200, ch 10 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.02
2.

3.

4.

5.

6.