RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060010415 


	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 that his undesirable discharge be upgraded to a general discharge. 

2.  The applicant essentially states that while in advanced individual training (AIT) at Fort Sill, Oklahoma, he was sent home because his older brother was killed in an automobile accident.  He then states, in effect, that he returned to Fort Sill, Oklahoma and completed AIT, then received orders for Oakland, California and then Vietnam.  He continued by essentially stating that when he went home again, his mother was very depressed, and was drinking [alcohol.]  He then states, in effect, that he was very concerned about his mother’s depression and drinking, so he went absent without leave (AWOL).  He also essentially states that his father was an alcoholic, and his younger brother was starting to drink and do drugs, and that whenever he thought about turning himself over to the Army he could not because he was worried about what his mother and younger brother might do to themselves.  

3.  The applicant also states, in effect, that he was married in 1974, and that in 1975, his mother committed suicide.  He also states that in 1980, his younger brother also committed suicide.  He continues by essentially stating that he has had good jobs since his discharge and has a very good reputation, and that he has had his current job for 16 years and has a leader position with the Public Schools.  He also states, in effect, that he takes pride in what he does, and that if his situation back in 1969 were different with his family, he would have received an honorable discharge.  He concluded by essentially stating that he has a beautiful wife and daughter whom he loves very much, and asks that his situation be reviewed and that consideration be given to changing his discharge, as he is not proud of it.  

4.  The applicant provides a self-authored statement, his Undesirable Discharge Certificate, and a letter from the Veterans Services Directorate, United States Army Reserve Personnel Center, St. Louis, Missouri in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 12 January 1972, the date of his discharge from the Army of the United States.  The application submitted in this case is dated 14 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’s records show that he was inducted into the Army of the United States on 14 June 1969.  He completed basic and advanced individual training and was awarded military occupational specialty 13A (Field Artillery Basic).  

4.  On 10 June 1969, the applicant went AWOL, and remained AWOL until he was returned to military control on or about 23 November 1971.  He was then assigned to the United States Army Personnel Control Facility at Fort Riley, Kansas.

5.  On 15 December 1971, the applicant’s commander recommended that he discharged from the service under the provisions of Army Regulation 635-206, for unfitness.

6.  On 16 December 1971, the applicant consulted legal counsel and was advised of the basis of the contemplated action to separate him for unfitness.  Subsequent to counseling, the applicant completed his election of rights by waiving consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He elected not to submit a statement of rebuttal in his own behalf.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.  

7.  On 27 December 1971, the proper authority approved the applicant’s discharge, and directed that he be issued an Undesirable Discharge Certificate.  On 12 January 1972, the applicant was discharged accordingly.  The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged under the provisions of Army Regulation 635-200, paragraph 45b.  The Separation Program Number (SPN) of “282” indicates the reason for his discharge was, “Misconduct/prolonged unauthorized absence for more than 1 year; desertion.”

8.  In his self-authored statement, the applicant essentially stated that while in AIT at Fort Sill, Oklahoma, he was sent home because his older brother was killed in an automobile accident.  He then stated, in effect, that he returned to Fort Sill, Oklahoma and completed AIT, then received orders for Oakland, California and then Vietnam.  He continued by essentially stating that when he went home again, his mother was very depressed, and was drinking alcohol.  He then stated, in effect, that he was very concerned about his mother’s depression and drinking, so he went AWOL.  He also essentially stated that his father was an alcoholic, and his younger brother was starting to drink and do drugs, and that whenever he thought about turning himself over to the Army he could not because he was worried about what his mother and younger brother might do to themselves.  The applicant also stated, in effect, that he was married in 1974, and that in 1975, his mother committed suicide.  He also stated that in 1980, his younger brother also committed suicide.  He continued by essentially stating that he has had good jobs since his discharge and has a very good reputation, and that he has had his current job for 16 years as a leader position with the Public Schools.  He also stated, in effect, that he takes pride in what he does, and that if his situation back in 1969 were different with his family, he would have received an honorable discharge.  He concluded by essentially stating that he has a beautiful wife and daughter who he loves very much, and asked that his situation be reviewed and that consideration be given to changing his discharge, as he is not proud of it.  

9.  The applicant failed to provide any evidence which shows that he requested any kind of assistance from his chain of command, and there is no record of any family issues in his military records.  The applicant had an opportunity to submit a statement to his chain of command at the time of his processing for discharge, but declined.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Section VII of the regulation provided, in pertinent part, that individuals may be considered for discharge when it is determined by administrative review of all facts that there is substantial evidence to support a determination of desertion or absence without leave. The unauthorized absence has continued for more than 1 year and the retention of the individual is precluded by regulations or is not considered desirable or in the best interest of the United States.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 (Enlisted Personnel) provides, in pertinent part,  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.

13.  Army Regulation 635-200 also provides, in pertinent part, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to a general discharge.

2.  The Board notes the applicant’s contentions that family problems essentially prevented him from fulfilling his military obligation.  However, the applicant did not provide any evidence, and his military records do not show that he requested any type of assistance with any family problems back in 1969.  

3.  Evidence of record shows that the applicant was AWOL, which was later changed to desertion, for 896 days at the time of his return to military control, and that he did not surrender to military control, but rather, was turned over to military control after he was detained by civil authorities.  

4.  Evidence of record also confirms that his discharge processing was accomplished in accordance with applicable regulations and that his discharge accurately reflects his overall record of service.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case, and the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  In order to justify correction of a military 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.

6. In view of the foregoing, there is no basis for granting the applicant's request.
 
7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 January 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
11 January 1975.  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

___JR___  ___DH __  __RG___  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.



_____Jeffrey Redmann_______
          CHAIRPERSON

INDEX

CASE ID
AR20060010415
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070208
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19720112
DISCHARGE AUTHORITY
AR 635-206; AR 635-200 PARA 45b.  
DISCHARGE REASON
ABSENCE MORE THAN 1 YEAR - DESERTION
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7100.0000
2.

3.

4.

5.

6.