RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060012411 


	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 general, under honorable conditions. 

2.  The applicant states, in effect, that his father's untimely death affected him at the time. 

3.  The applicant provides a self-authored statement; an employer's review; newspaper clippings reporting his father's death; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); and copies of adoption orders for two sons.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 17 January 1984, the date of his discharge from the 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.  On 19 February 1982, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for six years.  On 22 February 1982, he was discharged from the DEP and enlisted in the Regular Army for three years.  He completed training requirements and was awarded military occupational specialty 13B10 (Cannon Crewman). 

4.  The applicant attained the grade of private first class/E-3 and received the Army Service Ribbon and the Overseas Service Ribbon.  He served in the Republic of Korea from 7 June 1982 through 3 June 1983. 

5.  On 28 April 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order.  His punishment consisted of forfeiture of $128.00 and 7 days correctional custody.
6.  On 10 December 1982, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his prescribed place of duty and for failing to have a liberty pass in his possession.  His punishment consisted of a reduction to private/E-1 (suspended) and 12 days of restriction and of extra duty.
 
7.  On 12 October 1983, the applicant departed in absent without leave (AWOL) status and remained so absent until 11 November 1983.  

8.  On 17 November 1983, the applicant was charged with AWOL.  On
18 November 1983, 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.  

10.  On 12 December 1983, the intermediate commander recommended the applicant be discharged with an under other than honorable conditions discharge.

11.  On 28 December 1983, 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 17 January 1984 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 completed 1 year, 9 months, and 26 days of creditable active duty and had 31 days of lost time due to AWOL in the period of service under review. 

13.  In a self-authored statement, dated 23 August 2006, the applicant states that on the date of his departure from the Republic of Korea his father was killed in a truck/train collision.  He contends that his life changed and he could not get a grip 
on his thinking, especially regarding the care of his mother and younger siblings. He made a bad decision to go AWOL.  Since his discharge, he has been active in his community, he has worked at the same place for 19 years, he has also worked for Family and Children Services for many years and has fostered
15 children and adopted two.  He also has two biological children who are good citizens.  He hopes the Board can understand what happened to him 20 years ago and give consideration to his contributions since his discharge.

14.  The applicant provided a copy of newspaper articles reporting the tragic death of his father in a train accident.  His father, an employee of the City of Eaton, was killed when the trash packer he was driving was struck broadside by a train.  His father died on 1 June 1983 and was 41 years old. 

15.  The applicant provided a copy of his latest Employee Appraisal Form, dated 6 March 2006.  This appraisal shows the applicant has worked for the same employer since 2 March 1988, 19 years.  His performance exceeded the job requirement on the majority of assignments and he was paid a bonus.  He indicates that he has been lead man in his department for the past 12 years.

16.  The applicant has provided copies of the adoption orders for two sons he and his wife adopted.

17.  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.

18.  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.

19.  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.
20.  On 6 June 1988, after careful consideration of his case, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.
The ADRB denied his request because it felt the applicant was given sufficient time (30 days leave) at the time of his father's death to handle his personal affairs, that he did not complete his tour in the Republic of Korea, and that he went AWOL four months after his father's death.

21.  A review of the applicant's record shows he arrived in the Republic of Korea  on 7 June 1982.  He was already in possession of permanent change of station (PCS) orders, dated 14 April 1983, to Fort Bragg, North Carolina, when he was notified of his father's death by the American Red Cross on/or about 2 June 1983.  His PCS orders were amended on 2 July 1983 to include his approved 
30-day emergency leave for the death of a family member, and to adjust his availability date from 6 June to 3 June 1983, and his reporting date from 9 July to 5 July 1983.  He was credited with a 12-month tour completion for the Republic of Korea. 

22.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his ability to satisfactorily serve was impaired due to his father's unexpected death and his concern over his mother and younger siblings. 

2.  The applicant's record shows that he received NJP on two occasions for failing to go, disobeying a lawful order, and not having a liberty pass in his possession.  There is no evidence that these offenses were serious enough for the applicant's command to initiate separation processing.  He successfully completed his tour of duty in the Republic of Korea, and four days prior to his PCS, he received notification that his father had died as a result of an accident.  Although his command assisted him in giving him a 30-day emergency leave, the applicant would have been entitled to a 30-day PCS leave upon tour completion if he had the sufficient leave days saved. 

3.  The applicant has worked for the same company for 19 years displaying that he is a stable provider for his family and a responsible member of his community. He states that he worked for Family and Children Services for many years and fostered 15 children, two of which he adopted.  He has provided copies of the adoption orders. 

4.  The applicant does not excuse his misconduct and poor decision making in going AWOL.  Rather, he asks the members of the Board to carefully consider his extenuating circumstances in mitigation of his misconduct.  In recognition of his own responsibility, he requests only a general, under honorable conditions discharge.

5.  In view of the mitigating circumstances in the applicant's case and his documented accomplishments since his discharge, it would be in the interests of justice to change his characterization of service to general, under honorable conditions.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 6 June 1988.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 5 June 1991.  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:

__kan___  __lvd___  __dkh___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant was discharged from the Regular Army on 17 January 1984 as a private first class/E-3 with a general, under honorable conditions discharge.



						Kathleen A. Newman
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060012411
SUFFIX

RECON

DATE BOARDED
20070320
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19840117
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.