RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060012524 


	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 discharge under other than honorable conditions be upgraded to a general discharge. 

2.  The applicant essentially states that while on leave, he called for an extension of his leave through the Red Cross to get his wife and three children a place to live while he was enroute to Germany.  He also states, in effect, that he missed movement to Germany with his unit and that he turned himself in as a deserter, and thought that it was OK, as the Red Cross had notified his unit that he had an extension of his leave.  He further states, in effect, that his military record is free from other “serious” offensives prior to his desertion and subsequent discharge.

3.  The applicant provides page 2 of a DD Form 293 (Application for the Review of Discharge or Dismissal From the Armed Forces of the United States), a letter, dated 13 May 2005, from the Department of Veterans Affairs which erroneously  shows that he was honorably discharged on 21 January 1981, his DD Form 214 (Certificate of Release or Discharge From Active Duty) that was issued at the time of his discharge from the Regular Army on 1 October 1982, an NGB Form 22 (Report of Separation and Record of Service) issued at the time of his general discharge from the New Jersey Army National Guard on 19 November 1979, his DD Form 214 issued at the time of his relief from active duty training on 
1 December 1977, and paperwork concerning his discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial) in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 1 October 1982, the date of his discharge from the Regular Army.  The application submitted in this case is dated 25 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 20 November 1979, and had prior active duty for training and inactive duty in the New Jersey Army National Guard.  While serving at his initial permanent duty assignment at Fort Campbell, Kentucky, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction of duty.  His punishment consisted of extra duty for 
14 days, and restriction for 14 days.

4.  The applicant made a permanent change of station from Fort Campbell, Kentucky to Fort Sill, Oklahoma in May 1981.  While stationed at Fort Sill, the applicant accepted NJP under Article 15 of the UCMJ on two additional occasions, for being absent without leave (AWOL) on 22 July 1981, and for failing to go at the time prescribed to his appointed place of duty on 18 January 1982.  Collectively, his punishment consisted of two suspended reductions in rank which were later remitted, a forfeiture of $271.00 (suspended and later remitted), and 28 days of extra duty.

5.  The applicant’s military records appear to show that he was making a permanent change of station (PCS) from Fort Sill, Oklahoma to Germany, and was placed on a 30-day PCS leave on 2 June 1982.  On 2 July 1982, he was placed in an AWOL status, and remained in this status until he surrendered to military authorities in Bayonne, New Jersey on 26 August 1982.  He was then transferred to the United States Army Personnel Control Facility at Fort Dix, New Jersey.

6.  On 27 August 1982, charges were preferred against the applicant for being AWOL from 2 June 1982 to on or about 26 August 1982, an offense punishable under the UCMJ with a punitive discharge.

7.  On 27 August 1982, the applicant voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200, Chapter 10.  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 was guilty of the charge(s) against him or (a) lesser included offense(s) therein contained which also authorize(s) 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 offense(s) with which he was charged, any relevant lesser included offense(s) 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 other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged that he had been advised and understood the possible effects of an under other than honorable 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 Department of Veterans Affairs (VA), 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 discharge.  The applicant elected not to submit a statement on his own behalf.  

10.  On 7 September 1982, the proper approval authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished a Discharge Certificate Under Other Than Honorable Conditions.  He also directed that the applicant be reduced in rank to the lowest possible rank.  On 1 October 1982, the applicant was discharged accordingly.  

11.  The applicant essentially stated that while on leave, he called for an extension of his leave through the Red Cross to get his wife and three children a place to live while he was enroute to Germany.  However, his records appear to show that he had been given a 30-day leave to take care of personal business such as relocating family members.

12.  The applicant also stated that he missed going with his unit to Germany, and turned himself in as a deserter, but thought that it was OK, as the Red Cross had notified his unit that he had an extension of his leave.  However, the Red Cross has no authority to extend absences to military personnel.

13.  The applicant further stated, in effect, that his military record is free from other “serious” offensives prior to his desertion and subsequent discharge.  However, his record of accepting NJP under Article 15 of the UCMJ suggests otherwise.

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

15.  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.

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.

DISCUSSION AND CONCLUSIONS:

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

2.  Although the applicant essentially stated that while on leave, he called for an extension of his leave through the Red Cross to get his wife and three children a place to live while he was enroute to Germany, his records appear to show that he had been given a 30-day leave to take care of personal business such as relocating family members.  Also, although the applicant stated that he believed the Red Cross had notified his unit and that he had an extension of his leave.  However, the Red Cross had no authority to extend absences to military personnel, and it is unlikely that any Red Cross representative told the applicant that he was authorized any further leave without first obtaining approval through military channels.

3.  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.

4.  The applicant's record of service shows that he had 56 days of lost time due to AWOL.  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 discharge or an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 October 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
30 September 1985.  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

___JI  ___  ___SP __  __QS ___  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 Infante________
          CHAIRPERSON




INDEX

CASE ID
AR20060012524
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070403
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19821001
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10 
DISCHARGE REASON
DISCHARGE IN LIEU OF TRIAL BY CM
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7100.0000
2.

3.

4.

5.

6.