RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 April 2007
	DOCKET NUMBER:  AR20060012341 


	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 under other than honorable conditions discharge be upgraded to honorable. 

2.  The applicant states, in effect, that he was absent without leave (AWOL) for over five years, but he turned himself in at Kirtland AFB, Albuquerque, New Mexico.  He believes he displayed poor judgment and made a mistake when he went AWOL because of the traumatic impact of his father's death.  He was the eldest child in the family and was needed at home.  Although the American Red Cross assisted him in obtaining emergency leave while he was stationed in Italy, he failed to report back to his unit.  He believes that since his discharge he had to do some healing and take responsibility for his actions. 

3.  The applicant did not provide additional documentary evidence in support of this application.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 19 March 1979, the date of his discharge from the Army.  The application submitted in this case is dated 22 August 2006 and received on
1 September 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.  On 16 November 1973, the applicant enlisted in the Regular Army for a period of four years.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B1O (Infantryman).  

4.  The applicant departed in AWOL status on 12 June 1974 and remained absent until 14 February 1979.  He surrendered at Kirtland AFB and was returned to military control at Fort Sill, Oklahoma. 


5.  On 27 February 1979, the applicant was charged with AWOL.  On
26 February 1979, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.

9.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army 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 a discharge under other than honorable conditions.  He did not submit a statement or mitigating evidence in his own behalf.

10.  On 26 February 1979, the intermediate commander recommended the applicant be discharged with an under other than honorable conditions discharge.

11.  On 12 March 1979, the separation authority approved the applicant's request for discharge and directed he be issued an under other than honorable conditions discharge.

12.  Accordingly, the applicant was discharged on 19 March 1979 under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions discharge.  He had 1709 days of lost time due to AWOL. 

13.  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 a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  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.
15.  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.

16.  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.
  
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had 1709 days of lost time due to AWOL.  Although the applicant surrendered to military authorities after 5 years, this fact is insufficient as a basis for changing his discharge.

2.  The applicant contends that the traumatic loss of his father impelled him to return home and take care of his family.  However, when given an opportunity to input mitigating circumstances in his own behalf at the time of his discharge, he did not submit any statements to the effect that his father's death had impacted his judgment.  Further, the applicant has not submitted any evidence in support of his current contentions or any extenuating evidence to mitigate his long period of AWOL.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights.
In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  

4.  Given the above, the applicant provided insufficient evidence to mitigate his lengthy AWOL and his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no justification to change the characterization of his service. 

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

 
6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 March 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
18 March 1982.  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

__js____  __dkh___  __jgh___  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.



							John Slone
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060012341
SUFFIX

RECON

DATE BOARDED
20070419
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19790319
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.