RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060013202 


	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.


Mr. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Thomas M. Ray

Member

Ms. Rea M. Nuppenau

Member

	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 under other than honorable conditions discharge be upgraded to an honorable or general discharge. 

2.  The applicant states, in effect, that he was young and did not understand the consequences of his actions.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 30 December 1981; Veteran Assessment Form, dated 6 September 1999; and Statement of Receipt - Applicant/Participant Rights Form, dated 6 September 1969.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 30 December 1981, the date of his discharge from the Army.  The application submitted in this case is dated 30 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 16 August 1979, the applicant completed a DD Form 1966 (Application for Enlistment - Armed Forces of the United States).  This document shows in Section IX (Parental/Guardian Consent for Enlistment) the applicant's parents certified his birthday as 16 August 1962 and that both his parents, Eugene E. W_________ and Hyacinth W_________ indicated their consent to the applicant's enlistment by placing their signatures on the document.  At the time, the applicant was 17 years old.

4.  On 21 August 1979, the applicant enlisted in the U.S. Army Reserve for a period of 6 years and entered active duty in the Regular Army for 3 years on
20 September 1979.  The applicant's enlistment documents show, in pertinent part, that he enlisted for training in military occupational specialty (MOS) 27E (Tube-launched, Optically-tracked, Wire-guided (TOW)/Dragon Repairer).  The applicant completed basic combat training and on 15 November 1979 was assigned to the 4th Training Company, U.S. Army Missile and Munitions Center and School (USAMMCS), Redstone Arsenal, Alabama, for training in MOS 27E.

5.    The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record).  Item 17 (Civilian Education and Military Schools) shows that the applicant did not complete the TOW/Dragon Repairer (MOS 27E) Course.

6.  The applicant's military service records contain 12 DA Forms 4187 (Personnel Actions), ranging in dates from 29 February 1980 to 2 December 1981, that document changes in the applicant's duty status.  These documents show, in pertinent part, that he was reported absent without leave (AWOL) on 29 February 1980, dropped from the rolls (DFR) on 30 March 1980, present for duty (PDY) on 20 November 1980, AWOL on 21 November 1980, DFR on 25 November 1980, PDY on 2 March 1981, AWOL on 20 March 1981, DFR on 24 March 1981, PDY on 24 September 1981, AWOL on 25 September 1981, DFR on 28 September 1981, and PDY on 25 November 1981.

7.  The applicant's military service records contain a DD Form 458 (Charge Sheet) that shows, on 1 December 1981, the captain in command of Company A,
U.S. Army Personnel Control Facility, Fort Dix, New Jersey, preferred charges against the applicant for being AWOL during the periods 29 February 1980 to
20 November 1980, 21 November 1980 to 2 March 1981, 20 March 1981 to
24 September 1981, and 25 September 1981 to 25 November 1981.

8.  On 2 December 1981, the applicant requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of the request for discharge, and the rights available to the applicant.

9.  The applicant signed his request for discharge which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Department of Veterans Affairs benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.
10.  The applicant's request for separation contains a letter written by the applicant to the separation authority, dated 2 December 1981, in which the applicant states, in pertinent part, he went AWOL due to the fact that his wife was eight and one-half months pregnant and he wanted to be present at the time of his child's birth; however, he was denied leave by his unit.

11.  On 8 December 1981, the captain in command of Company A, U.S. Army Personnel Control Facility, Fort Dix, New Jersey, recommended the applicant for separation from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  The commander indicated that the applicant had no motivation for continued service and will not respond to either counseling or rehabilitation.  The commander recommended that the applicant be furnished an Other Than Honorable Conditions Discharge Certificate.

12.  On 9 December 1981, the commander of the U.S. Army Personnel Control Facility, Fort Dix, New Jersey, recommended approval of the separation action, that the applicant be furnished an Other Than Honorable Conditions Discharge Certificate, and forwarded the action to the separation authority.

13.  On 10 December 1981, the major general serving as Commander, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, approved the applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200, directed that the applicant be reduced to the rank of private/pay grade E-1, and issued a discharge under other than honorable conditions.

14.  The applicant's DD Form 214 shows he was discharged on 30 December 1981 in accordance with the provisions of chapter 10 of Army Regulation
635-200 in lieu of trial by court-martial.  The applicant's DD Form 214 shows that he completed 7 months and 4 days net active service and had 615 days lost under Title 10, United States Code 972.

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

16.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, 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 discharge for the good of the service in lieu of trial by court-martial.  The request may be 
submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  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, 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.

18.  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.

19.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable conditions discharge should be upgraded because he was young and did not understand the consequences of his actions.  However, the applicant provides insufficient evidence in support of his claim.

2.  The evidence of record shows that the applicant enlisted for training in MOS 27E and that the Army sent him to the USMMCS, Redstone Arsenal, Alabama for that training.  The evidence of record also shows that the applicant failed to complete the training he requested when he enlisted in the Army.

3.  The applicant contends that he was young and did not fully understand the consequences of his actions at the time.  Records show that the applicant was over 17 years old at the time of he went AWOL and that he was nearly 19 years old at the time of his voluntary request for discharge under the provisions of 
chapter 10 of Army Regulation 635-200.  The evidence of record shows that the applicant stated he went AWOL to be with his wife who was eight and one-half months pregnant at the time.  However, the evidence of record also indicates that the applicant's 615 days of unauthorized absence from the Army occurred over a period of time spanning approximately 21 months.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military training and service during this time period.  Thus, the evidence of record fails to support the applicant's claim.

4.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant’s record of service, which shows completion of only 7 months of his 36-month enlistment and 615 days (i.e., more than 1 year and 8 months) of AWOL, did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, the applicant is not entitled to an honorable discharge.  Furthermore, this service was not satisfactory.  Therefore, the applicant is also not entitled to a general discharge.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 December 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 December 1984.  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

___JTM__  ___TMR_  ___RMN_  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 T. Meixell______
          CHAIRPERSON




INDEX

CASE ID
AR20060013202
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/17
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19811230
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
Conduct Triable by Court-Martial
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.