RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060009926 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry Jr.

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that he married young and had problems dealing with his marriage and the military.  He further states that his family could not accompany him to Germany because he was not advanced to the rank of Specialist (SPC)/E-4 which caused him to go absent without leave (AWOL).

3.  The applicant provides no additional documentation in support of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 19 July 1984.  The application submitted in this case is dated 3 July 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 was born on 8 September 1962.  He enlisted in the Regular Army on 14 July 1982 for a four year term of service.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

4.  A DD Form 458 (Charge Sheet), dated 20 June 1984, shows charges were preferred against the applicant for being AWOL for the period 6 May 1984 through 7 June 1984.

5.  On 21 June 1984, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Conditions Discharge and waived the right to provide statements on his own behalf.

6.  On 29 June 1984, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  On 19 July 1984, the applicant was discharged with a characterization of service of under other than honorable conditions.  He had completed 1 year, 11 months, and 5 days of creditable active service with 32 days of lost time due to AWOL.

7.  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 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. An under other than honorable conditions discharge is normally considered appropriate.

8.  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.

9.  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 applicant contends that he was young and had family problems at the time of his misconduct.  However, records show that the applicant was 19 years, 10 months, and 6 days old at the time he entered active duty.  He was 21 years, 
7 months, and 28 days old at the time of his offense and should have been aware of the Army's standards of conduct.  There is no evidence of record and the applicant has not provided evidence that shows he sought assistance from his chain of command, chaplain, or community support service for assistance with his family problems.  Therefore, there is no basis for these arguments.

2.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The applicant's records show that he had one instance of a lengthy AWOL.  He had completed 1 year, 11 months, and 5 days of service of his four-year term of service before his separation with a total of 32 days of lost time due to being AWOL.  Regrettably, based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general or honorable discharge.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 July 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
18 July 1987.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__HOF __  __WFC  _  __DED _  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.




____ Mr. Hubert O. Fry Jr.__
          CHAIRPERSON




INDEX

CASE ID
AR20060009926
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. CHUN
ISSUES         1.
144.0153.0000
2.
144.0135.0000
3.
144.0133.0000
4.

5.

6.