RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060011420 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Ted Kanamine

Chairperson

Mr. Larry Bergquist

Member

Ms. LaVerne Douglas

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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he does not contest the absent without leave (AWOL) periods, but he believes the issuance of a discharge under other than honorable conditions is too severe for the offense committed.  He contends that he went into the service at age 17 and that after basic training he ended up with family problems (parents divorce).  He states that he did not have the maturity or experience with military procedures to handle his problems correctly.  He further states that he went AWOL and deserved to be punished but this punishment follows him today.  Every time he applies for a job he worries that the employer will want to know what type of discharge he received.  He contends that he has worked hard to put his life back together to become a productive member of society.  

3.  In a statement, dated 6 July 2006, the applicant states that his parents split up in 1979 and divorced two or three years later, that he moved out of his parent’s house in 1980 due to the constant fighting, and that after he enlisted his girlfriend claimed that she was pregnant with his child and that if he did not come home he would never see his child. 

4.  The applicant provides a copy of his DA Form 2-1 (Personnel Qualification Record); a copy of his parent’s 1981 divorce judgment; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 18 December 1981.  The application submitted in this case is dated 1 August 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 6 August 1963.  He enlisted on 30 July 1981 for a period of 3 years.  He successfully completed basic training.  

4.  The applicant went AWOL on 11 August 1981 and returned to military control on 11 September 1981.  He went AWOL again on 14 September 1981 and returned to military control on 10 November 1981.  On 13 November 1981, charges were preferred against the applicant for the AWOL period 
(14 September 1981 to 10 November 1981).    

5.  On 16 November 1981, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an other than honorable discharge.  He elected not to make a statement in his own behalf. 

6.  On 30 November 1981, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 18 December 1981 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial.  He had served 1 month and 23 days of total active service with 88 days of lost time due to AWOL.  

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

9.  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, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  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.  

11.  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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted (only six days from his 18th birthday), he completed basic training.

2.  The applicant’s claim that family problems (parents divorce) caused him to go AWOL does not provide a basis for upgrading his discharge.  It is noted that the applicant stated after basic training he ended up with family problems; however, in his 6 July 2006 statement he indicated that his parents split up in 1979, two years before he enlisted in the Army, and that he had moved out of his parent’s house in 1980 due to the constant fighting.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to going AWOL.

3.  A discharge is not upgraded for the sole purpose of obtaining employment opportunities. 

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.


6.  Since the applicant had an 88-day AWOL offense that led to referral of a court-martial charge, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

7.  Records show the applicant should have discovered the alleged injustice now under consideration on 18 December 1981; therefore, the time for the applicant to file a request for correction of any injustice expired on 17 December 1984.  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

TK_____  _LB_____  _LD_____  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.




___Ted Kanamine_____
          CHAIRPERSON




INDEX

CASE ID
AR20060011420
SUFFIX

RECON

DATE BOARDED
20070227
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19811218
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service, in lieu of court-martial
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.