RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060009699 


	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.



	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 under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant essentially states that the circumstances surrounding his period of being absent without leave (AWOL) from Fort Carson, Colorado were not taken into account when he was discharged.  He also states, in effect, that in light of recent high-profile, long-term personnel being discharged under honorable conditions after decades of being AWOL, his discharge appears unjust.  He continued by stating, in effect, that because civilian child protective services in Colorado were attempting to take his newborn daughter from his and his wife’s custody for unsubstantiated reasons, on the advice of his attorney, he went AWOL as a result of relocating his family to California.  He also states, that after taking his family to California, he contacted his attorney, who told him that if he returned to Fort Carson, Colorado, the local authorities planned on arresting him unless he turned over his daughter to them.  He then states that he was instructed by his attorney to remain in California until after the case was resolved. 

3.  The applicant further states that, after many months of dealing with the Colorado authorities, they finally dropped all complaints and closed their case, at which time he immediately turned himself in to the civilian law enforcement authorities in Moreno Valley, California.  He then states that after being sent to Fort Ord, California, he was told that he would be discharged in lieu of court-martial, and that if he insisted on a court-martial, he would be found guilty and receive a dishonorable discharge.  He continued by stating, in effect, that he was told that if he accepted a discharge in lieu of court-martial, he would receive a discharge under other than honorable conditions, and that he accepted this discharge without a full understanding of the consequences associated with this type of discharge.    

4.  The applicant provides a 9 May 2006 letter from the Department of Veterans Affairs which shows, in pertinent part, that they held, on 9 May 2006, that his discharge under other than honorable conditions is honorable for DVA purposes, and qualifies him, his dependents, and survivors for all benefits administered by the DVA.  He also provides a two-page self-authored letter in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 13 December 1989, the date of his discharge from the Regular Army.  The application submitted in this case is dated 27 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’s records show that he enlisted in the Regular Army on 20 May 1985.  He completed basic and advanced individual training and was awarded military occupational specialty 63H (Track Vehicle Repairer).  He departed for his initial permanent duty assignment in Germany on 9 October 1985, and served with the 22nd Maintenance Company.  On 24 March 1986, his check cashing privileges were suspended for writing bad checks.  He was awarded the Army Achievement Medal for meritorious achievement  from 1 to 30 June 1986.  He returned to the continental United States on 30 September 1987, and was then assigned to Fort Carson, Colorado on or about 9 November 1987, and was assigned to the 73rd Maintenance Company.  

4.  The applicant went AWOL on 14 July 1988, and returned on 29 July 1988.  Although no record of nonjudicial punishment was found in his records, a 
DA Form 4187 (Personnel Action) dated 26 October 1988, shows that he was reduced in rank from specialist four (SP4)/pay grade E-4 to private first class(PFC)/pay grade E-3, with his new date of rank to PFC as 11 August 1988.  

5.  On 22 November 1988, the applicant went AWOL again.  On 21 December 1988, he was dropped from the rolls as a deserter.  On 21 June 1989 the applicant surrendered to civilian authorities in Moreno Valley, California, and was returned to military authorities in Long Beach, California.  He was then transferred to Fort Ord, California, and was assigned to the Processing Company, United States Army Personnel Control Facility.

6.  Although the complete elimination packet on the applicant is not in his military records, on 6 July 1989, the applicant voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood that by submitting his request for discharge, he acknowledged that he understood the elements of the offense charged, and that he was guilty of the charge against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  

7.  In his request for discharge, the applicant acknowledged that prior to completing his request, he was afforded the opportunity to consult with appointed counsel, who had fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, any relevant lesser included offense thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appear to be available at that time; and the maximum permissible punishment if found guilty, and of the legal effect and significance of his suspended discharge.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.  

8.  The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.  He also acknowledged that he had been advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  It does not appear that the applicant elected to submit a statement on his own behalf.  

9.  On 30 November 1989, the proper approval authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished with a discharge under other than honorable conditions.  He also essentially directed that he be reduced in rank to private/pay grade E-1.  On 
13 December 1989, the applicant was discharged accordingly.  

10.  In a letter, dated 27 January 1997, the Army Discharge Review Board informed the applicant that his petition to upgrade his discharge had been denied.


11.  In his application, the applicant essentially stated that the circumstances surrounding his period of being AWOL were not taken into account when he was discharged.  He also stated, in effect, that in light of recent high-profile, long-term personnel being discharged under honorable conditions after decades of being AWOL, his discharge appeared unjust.  He continued by stating, in effect, that because civilian child protective services in Colorado were attempting to take his newborn daughter from his and his wife’s custody for unsubstantiated reasons, on the advice of his attorney, he went AWOL as a result of relocating his family to California.  He also stated that after taking his family to California, he contacted his attorney, who told him that if he returned to Fort Carson, Colorado, the local authorities planned on arresting him unless he turned over his daughter to them.  He then stated that he was instructed by his attorney to remain in California until after the case was resolved. 

12.  The applicant then stated that, after many months of dealing with the Colorado authorities, they finally dropped all complaints and closed their case, at which time he immediately turned himself in to the civilian law enforcement authorities in Moreno Valley, California.  He then stated that after being sent to Fort Ord, California, he was told that he would be discharged in lieu of court-martial, and that if he insisted on a court-martial, he would be found guilty and received a dishonorable discharge.  He continued by stating, in effect, that he was told that if he accepted a discharge in lieu of court-martial, he would receive a discharge under other than honorable conditions, and that he accepted this discharge without a full understanding of the consequences associated with this type of discharge.    

13.  The applicant did not provide any evidence, and there is no evidence in his military records which shows that he requested any assistance in his child custody issue from his chain of command or legal assistance office.  He also did not provide any evidence which shows that his attorney advised him to accompany his family to California, especially if not on an authorized absence.  He also did not provide a reason why he simply did not purchase transportation, such as plane or bus tickets for his wife and daughter, and not go AWOL.  

14.  The applicant’s military records contain a DA Form 4384 (Commander’s Report of Inquiry/Unauthorized Absence), which was completed by the applicant’s company commander on 22 December 1988.  It essentially shows that possible factors contributing to the applicant’s AWOL were indebtedness and trouble with superiors.  It did not mention child custody issues.  This form also shows that the applicant’s chain of command was investigating the possibility of separating him for hardship or indebtedness at the time he went AWOL on
22 November 1988. 

15.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

16.  Army Regulation 635-200 further provides, in pertinent part, that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be used for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in certain circumstances.

17.  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.

18.  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.

19.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  While the Board does not doubt the veracity of the applicant’s claim that Colorado child protective services was attempting to take his daughter for unsubstantiated reasons, the applicant’s contention that he had to go AWOL in order to relocate his family to California was not accepted.  If the applicant and his wife were concerned about Colorado child protective services taking their newborn daughter away from them, and felt it necessary to relocate her to California, it did not appear necessary for the applicant to accompany his wife and daughter to California, especially in an AWOL status, which was later changed to desertion.

3.  The applicant did not provide any evidence, and there is no evidence in his military records which shows that he requested any assistance in his child custody issue from his chain of command or legal assistance office.  He also did not provide any evidence which shows that an attorney advised him to accompany his family to California, especially if not on an authorized absence.  He also did not provide a reason why he simply did not purchase transportation, such as plane or bus tickets for his wife and daughter, and not go AWOL.  

4.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant's record of service shows that had 226 days of lost time due to AWOL.  He voluntarily requested discharge from the Army in lieu of trial by court-martial.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on or about 27 January 1997.  As a result, the time for the applicant to file a request for correction of any 

error or injustice to this Board expired on 26 January 2000.  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

___MM__  __JM____  ___QS__  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.




_____ Mark Manning________
          CHAIRPERSON




INDEX

CASE ID
AR20060009699
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19891213
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10 
DISCHARGE REASON
FTGOTS – IN LIEU OF COURT-MARTIAL
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7100.0000
2.

3.

4.

5.

6.