RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   5 April 2007
	DOCKET NUMBER:  AR20060012604 


	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 or general discharge. 

2.  The applicant essentially states that he has health matters now.  He also states, in effect, that he turned himself in to the proper authorities and was punished.  He further states that he has been diagnosed with emphysema.

3.  The applicant provides no additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 13 July 1989, the date of his discharge from the Regular Army.  The application submitted in this case is dated 19 June 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 27 August 1982.  After completing basic and advanced individual training, he was assigned to Fort Bliss, Texas.  He was later assigned to Fort Ord, California.  

4.  Orders, dated 14 November 1985, as amended directed that the applicant proceed on a permanent change of station (PCS) from Fort Ord, California to Fort Riley, Kansas, with temporary duty at Fort McClellan, Alabama for training enroute.  

5.  The applicant completed training at Fort McClellan, Alabama, and departed on leave, with a reporting date to Fort Riley, Kansas of 1 May 1986.  However, the applicant failed to report, and his status was changed from assigned not joined to absent without leave (AWOL) effective 1 May 1986.  His status was later changed to dropped from the rolls, and he was listed as a deserter.

6.  On 16 May 1989, the applicant surrendered to military authorities at Avon Park, Florida.  

7.  Although the completed separation packet surrounding his discharge was not contained in the available records, his military records do contain a properly constituted DD Form 214 (Certificate of Release or Discharge From Active Duty). This document shows that the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial) on 13 July 1989.  This document also shows that he was reduced to the rank of private/pay grade E-1 effective 1 June 1989.

8.  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.

9.  The applicant essentially stated that he has health matters now.  He also stated, in effect, that he turned himself in to the proper authorities and was punished.  He further stated that he has been diagnosed with emphysema.

10.  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.

11.  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.

12.  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.  The fact that the applicant turned himself in to the proper authorities was noted; however, this act does not outweigh or rectify his desertion.

3.  The fact that the applicant stated that he has been diagnosed with emphysema was also noted; however, this has no bearing on the applicant’s misconduct which resulted in his discharge.

4.  Although the applicant’s complete separation packet was not in his military records, 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 1,110 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.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 July 1989; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
12 July 1992.  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

___LS  __  __JR  ___  ___SF __  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.




_____ Linda Simmons_______
          CHAIRPERSON




INDEX

CASE ID
AR20060012604
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19890713
DISCHARGE AUTHORITY
AR 635-200 
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.