RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 June 2007
	DOCKET NUMBER:  AR20060012353 


	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, in effect, that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant essentially states that the financial and marital problems impaired his ability to serve in the Army.  He also states, in effect, that his chain of command supported a senior noncommissioned officer (NCO) in his immediate chain of command who he claims was having an affair with his wife, and believed at the time that he had no other option than to go absent without leave (AWOL), but that he now knows differently.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a self-authored statement, dated 1 December 2003, a letter, dated 23 August 2006, from a veterans service officer, and two third-party letters in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 August 1987, the date of his discharge from the Regular Army.  The application submitted in this case is dated 23 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’s military records show that he enlisted in the Regular Army on 16 January 1979.  He completed initial entry training and was awarded military occupational specialty 13B (Cannon Crewman).  He then served in Germany from 29 April 1979 to 11 October 1985, being promoted from private/pay grade E-1 to sergeant (SGT)/pay grade E-5.  Although the circumstances surrounding his reduction from SGT/pay grade E-5 to specialist four (SP4)/pay grade E-4 are not known, his military records show that this reduction was effective 28 June 1984.  In November 1985, the applicant was reassigned to Fort Sill, Oklahoma for what would be his final permanent duty assignment.

4.  On 6 February 1987, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his place of duty on 26 January 1987, and remaining absent until he returned on 27 January 1987, and for failing to obey a lawful order to remain in the field from 26 January 1987 to 29 January 1987.  His punishment consisted of reduction in rank from SP4/pay grade E-4 to private first class/pay grade E-3, forfeiture of $204.00 per month for 1 month, and 14 days restriction to the unit area, place of duty, place of worship, and dining facility.

5.  On 17 March 1987, the applicant went AWOL, and remained in this status until he was apprehended on 15 April 1987 and placed in military confinement.  On 16 April 1987, the applicant again went AWOL, and on 16 May 1987, he was dropped from the rolls of the Army and listed as a deserter.  On 27 July 1987, the applicant surrendered to military authorities, and was assigned to the United States Army Personnel Control Facility at Fort Sill, Oklahoma.

6.  On 29 July 1987, charges were preferred against the applicant for his two periods of AWOL, and it was recommended that he be tried by a special court-martial.

7.  Also on 29 July 1987, the applicant voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood that by submitting his request for discharge, he acknowledged that he understood the elements of the offense charged, and that he was guilty of the charge against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  

8.  In his request for discharge, the applicant acknowledged that prior to completing his request, he was afforded the opportunity to consult with appointed counsel, who had fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, any relevant lesser included offense thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appear to be available at that time; and the maximum permissible punishment if found guilty, and of the legal effect and significance of his suspended discharge.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.  

9.  The applicant also understood that if his request for discharge was accepted, he may be discharged under conditions other than honorable, and the possible effect of an Under Other Than Honorable Discharge Certificate.  He also acknowledged that he had been advised and understood the possible effects of this type of discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  The applicant elected not to submit a statement on his own behalf; however, it was noted that the applicant stated in an AWOL/Deserter Returnee Statement that family and financial matters caused him to go AWOL, and that he had consulted all of his chain of command, civilians, his officers and/or noncommissioned officers, and the chaplain and/or American Red Cross prior to going AWOL.

10.  On 17 August 1987, the proper approval authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished with a discharge under other than honorable conditions.  He also directed that he be reduced in rank to private/pay grade E-1.  On 28 August 1987, the applicant was discharged accordingly.  

11.  On 16 August 2000, the Army Discharge Review Board denied the applicant’s petition to upgrade his discharge.

12.  The applicant essentially stated that financial and marital problems impaired his ability to serve in the Army.  He also states, in effect, that his chain of command supported a senior NCO in his immediate chain of command who he claims was having an affair with his wife, and believed at the time that he had no other option than to go AWOL.  However, the applicant failed to provide any evidence that a senior NCO in his chain of command was having an affair with his wife.  



13.  In an AWOL/Deserter Returnee Statement prepared after his return to military control, the applicant essentially stated that he had consulted all of his chain of command, civilians, his officers and/or NCOs, and the chaplain and/or American Red Cross prior to going AWOL.  However, there is no evidence that the applicant requested that the Inspector General’s office investigate his claim that a senior NCO in his chain of command was having an affair with his wife.

14.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200 further provides, in pertinent part, that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be used for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in certain circumstances.

16.  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.

17.  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.

18.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records (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.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  The fact that the applicant stated in an AWOL/Deserter Returnee Statement that family and financial matters caused him to go AWOL, and that he had consulted all of his chain of command, civilians, his officers and/or NCOs, and the chaplain and/or American Red Cross prior to going AWOL was noted.  The fact that the applicant also stated that a senior NCO in his chain of command was having an affair with his wife was also noted.  However, the applicant provided no evidence to corroborate his claim that a senior NCO in his chain of command was having an affair with his wife, and there is no indication that he requested that the Inspector General’s office investigate his claim of this affair.

3.  While the Board does not doubt the veracity of the applicant’s contention that a senior NCO in his chain of command was having an affair with his wife, the fact that he claims that his chain of command sided with the senior NCO in question suggests that either the chain of command investigated the applicant’s claim and found it not to have merit, or that he did not in fact actually bring this matter to his chain of command’s attention.  Inappropriate relationships between superiors and their subordinates’ spouses is one of the most detrimental and egregious acts in the service which can quickly destroy unit morale and esprit de corps, and it is highly unlikely that any chain of command would not swiftly take corrective action if accusations of this type were found to be substantiated.  Additionally, as the applicant had over 8 years of active duty service prior to going AWOL, he should have known that going AWOL would not improve his problems, but would only exacerbate them.
4.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant's record of service shows that had 131 days of lost time due to AWOL, and NJP under Article 15 of the UCMJ for another period of AWOL and failing to obey a lawful order.  He voluntarily requested discharge from the Army in lieu of trial by court-martial.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 16 August 2000.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 15 August 2003.  However, 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

__CD ___  __MF ___  __JR____  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.




_____ Carmen Duncan_______
          CHAIRPERSON




INDEX

CASE ID
AR20060012353
SUFFIX

RECON
20070607
DATE BOARDED

TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19870828
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10 
DISCHARGE REASON
FTGOTS – IN LIEU OF COURT-MARTIAL
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7100.0000
2.

3.

4.

5.

6.