RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060012019 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Kenneth Wright

Chairperson

Mr. Chester Damian

Member

Ms. Ernestine Fields

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 extenuating circumstances concerning the illness of his father were not taken into account at the time he went absent without leave (AWOL) and at the time his discharge was issued.  He contends that in October 1978 he found out his father was seriously ill, that he could not take leave until January 1979, and that he took extended leave from January 1979 through June 1979.  He states that he went through his chain of command and was told to apply for a transfer, which was denied.  He was told to apply for a hardship discharge, which he did not want, which was also denied.  He applied for a compassionate reassignment, which was denied.  He states that during this period of time waiting for a response to remedy this situation, he went through other channels, his Commanding Officer, the Chaplain, and his second lieutenant.  After depleting all of his resources and waiting for an answer, his judgment was clouded with the serious condition of his father and the stress put on his mother, so he went AWOL	from June 1979 to August 1979.  

3.  The applicant further states that from the time of his discharge through November 1983, when his father passed away, he assisted his mother with his father’s care and helped her receive disability benefits.  He states that he began a career in construction, that he has operated a successful home improvement company for 21 years, that his credit is excellent, that his criminal record is clean, and that he is highly respected throughout the community. 

4.  The applicant provides a copy of his father’s WD AGO Form 53-55 (Enlisted Record and Report of Separation); a DA Form 20 (Enlisted Qualification Record); a Certificate of Achievement; two Department of Veterans Affairs (DVA) 1981 medical records pertaining to his father; a DD Form 214 (Report of Separation from Active Duty); an enlistment contract; Social Security documentation pertaining to his father; seven character reference letters; and criminal history reports.      

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 24 August 1979.  The application submitted in this case is dated 19 May 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 on 25 January 1977 for a period of 4 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 62B (construction equipment repairer). 

4.  On 8 March 1978, nonjudicial punishment was imposed against the applicant for being AWOL from his place of duty for 1 day.  His punishment consisted of a forfeiture of pay (suspended) and extra duty.

5.  A DA Form 4187 (Personnel Action), dated 12 January 1979, states the applicant went AWOL on 1 January 1979 and returned to military control on 
11 January 1979.  This form also states the applicant was processing a hardship discharge.  

6.  On 10 April 1979, nonjudicial punishment was imposed against the applicant for being AWOL from 27 January 1979 to 10 February 1979.  His punishment consisted of a reduction to E-1, a forfeiture of pay (suspended), and confinement at the correctional custody facility for 21 days.

7.  While pending an Article 15, the applicant went AWOL on 4 April 1979 and returned to military control on 7 June 1979.  On 21 June 1979, charges were preferred against the applicant for the AWOL period.

8.  On 21 June 1979, during an interview, the applicant stated that he went AWOL because his father had been terminally ill for some time and that he had been denied a hardship discharge and a compassionate reassignment.  He got disgusted with things and just departed AWOL because all of his attempts to get out of the Army were denied.    

9.  On 22 June 1979, 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. 

10.  The applicant was placed on excess leave on 22 June 1979.  

11.  On 2 August 1979, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

12.  Accordingly, the applicant was discharged under other than honorable conditions on 24 August 1979 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial.  He had served a total of 2 years, 4 months, and 1 day of active service with 88 days of lost time due to AWOL.  

13.  In support of his claim, the applicant provided a 1981 DVA medical record which shows his father was diagnosed with status post “DC” cardioversion, venostatis changes of legs, obesity, and ethanol abuse.  He also provided a DVA Medical Certificate and History for 1981

14.  The applicant provided seven character reference letters from his mother, sister, brother, three friends, and a business associate.  His family members attest that he went AWOL due to his father’s illness and that he was needed at home to help their family.  His other character reference letters indicate that he is a good man, a caring father, and that he is kind, considerate, hard working, and law abiding.      

15.  On 28 July 1989, the Army Discharge Review Board (ADRB) denied the applicant’s request for a discharge upgrade. 

16.  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.

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.  

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 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 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 evidence of record does not support the applicant’s contentions that he took extended leave from January 1979 through June 1979 and that he went AWOL from June 1979 to August 1979.  Evidence of record shows he went AWOL on three separate occasions from 1 January 1979 to 6 June 1979, for a total of 88 days of lost time.  In addition, he had previously been AWOL from his place of duty for 1 day.  Evidence of record also shows that he was placed on excess leave from 22 June 1979 to 24 August 1979.  

2.  The applicant’s contentions were noted.  However, family problems are not normally grounds for upgrading a discharge.   

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

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.   

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

6.  Since the applicant’s record of service included two nonjudicial punishments and 88 days of lost time, 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 a general or honorable discharge.

7.  Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 28 July 1989.  As a result, the time for the applicant to file a request for correction of any injustice to this Board expired on 27 July 1992.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence 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

KW____  ___CD___  _EF____  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.


___Kenneth Wright_____
          CHAIRPERSON




INDEX

CASE ID
AR20060012019
SUFFIX

RECON

DATE BOARDED
20070327
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19790824
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.