RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060010049 


	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.


X	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 to honorable. 

2.  The applicant states that he served his country with honor until his father fell sick and asked him to come home to care for him.  He goes on to state that he requested a reassignment and his request was denied.  He also states that all he could think of was his dying father and that he went absent without leave (AWOL) to be with his father.  He further states that his father died in 1982. 

3.  The applicant provides a copy of his report of separation (DD Form 214). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 16 April 1980.  The application submitted in this case is dated 5 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 enlisted in the United States Army Reserve (USAR) under the delayed entry program (DEP) on 1 November 1973.  He enlisted in the Regular Army on 28 November 1973 for a period of 2 years and training as a radio teletype operator.  He completed his training and was transferred to Germany on 4 July 1974.  He was advanced to the pay grade of E-4 on 1 March 1975 and on 17 November 1975, he was honorably released from active duty (REFRAD) as an overseas returnee.  He had served 1 year, 11 months and 20 days of total active service and was transferred to the USAR Control Group (Annual Training).    
4.  On 7 April 1977 he again enlisted in the Regular Army for a period of 4 years and assignment to Fort Stewart, Georgia.  On 7 May 1978, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 8 May 1978 for a period of 4 years and a regular reenlistment bonus.  

5.  On 31 March 1979, he was transferred to Germany.  On 13 November 1979, he was granted a 14-day emergency leave to return to the United States due to his father having a heart attack.  

6.  On 8 January 1980, the applicant went AWOL and remained absent until he surrendered to military authorities in Pittsburgh, Pennsylvania and was returned to military control at Fort Dix, New Jersey on 9 February 1980.  At the time of his return he indicated that he was told that his father only had 12 months to live and at that point he could no longer continue to function as normal.  He attempted to get a compassionate reassignment and a hardship discharge and both were denied.  He was working with his brother and staying with his father for his remaining days.  He indicated that he just wanted out of the Army because his spending time with his father was all that mattered to him.  Charges were preferred against him for the AWOL offense on 25 February 1980. 

7.  On 26 February 1980, after consulting with defense counsel, the applicant  
submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf. 

8.  The appropriate authority (a major general) approved his request on 31 March 1980 and directed that he be furnished a discharge under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 16 April 1980, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 10 months and 3 days of active service on his current enlistment and had 33 days of lost time due to AWOL.

10.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.         

DISCUSSION AND CONCLUSIONS:

1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board; however, they are not sufficiently mitigating to warrant relief when compared to his overall undistinguished record of service.  

4.  While the Board is not unsympathetic to the loss of the applicant’s father in 1982, his misconduct of going AWOL after being denied a compassionate reassignment and hardship discharge in 1980, is not considered acceptable conduct, especially from someone who had served on previous enlistments.    

5.  The applicant had sufficient experience in the military to understand the consequences of his actions and he chose to ignore those consequences at the time.  Accordingly, his request to be discharged in lieu of trial by court-martial, which could have resulted in a felony conviction, was approved.  

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.  

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 April 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 15 April 1983.  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

__X___  __X____  ___X __  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 Anderholm______
          CHAIRPERSON




INDEX

CASE ID
AR20060010049
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070206
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
1980/04/16
DISCHARGE AUTHORITY
AR635-200/CH10 . . . . .  
DISCHARGE REASON
GD OF SVC
BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.144.7000
689/a70.00
2.

3.

4.

5.

6.