RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2007
      DOCKET NUMBER:  AR20060015090


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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 that his discharge under other than honorable
conditions (UOTHC) be upgraded to general.

2.  The applicant states he needs to get health coverage for [an] illness
that occurred during his military service.  He states prior to his
discharge he put in   16 years of service for his country, including
service in Vietnam.  He was under a lot of pressure in his unit trying to
complete demanding assignments without the personnel needed to complete
those assignments, when problems started back at home with his wife of 11
years.

3.  The applicant states he reenlisted for a new military occupational
specialty (MOS) in January 1989 to better his chances for promotion.  He
moved his family to Fort Gordon, GA while he was going to the school.
After training, he was assigned to Fort Lewis, WA.  His wife informed him
she did not want to uproot his daughter from her school until he could get
quarters.  He was put on the waiting list for quarters, but when his name
came up his wife informed him she was not going to move to Fort Lewis.

4.  The applicant states he talked to his chain of command about the
problem, and they advised him to suggest to his wife that she get
counseling.  His wife turned down that suggestion.  When he asked her if
she wanted to work out the problem or get a divorce, she stated she was not
going to give him a divorce because she wanted to get half of his retired
pay.  The next time he phoned her, the phone had been disconnected.  His
wife’s father had no idea where she or the children were.  The next thing
he knew he was half way across the States searching for his children.  In
June 1991, after failing to find them, he turned himself in.

5.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty) for the period ending 17 June 1991.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 June 1991.  The application submitted in this case is dated
13 October 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 served in the Regular Army from 19 June 1967 through 23
June 1970, when he was honorably released from active duty.  He enlisted in
the Regular Army on 4 February 1975 and served until 31 January 1978, when
he was honorably discharged.

4.  The applicant enlisted in the Regular Army on 22 June 1981.  He was
promoted to pay grade E-5 on 2 January 1983.  He was honorably discharged
on 10 April 1984 and immediately reenlisted on 11 April 1984.  He was
honorably discharged on 11 January 1987 and immediately reenlisted on 12
January 1987.

5.  On 22 April 1991, court-martial charges were preferred against the
applicant charging him with being absent without leave (AWOL) from on or
about             21 January 1990 to on or about 9 April 1991.

6.  On 23 April 1991, after consulting with legal counsel, the applicant
voluntarily requested a discharge under the provisions of Army Regulation
635-200, chapter 10 for the good of the service.  The applicant was advised
of the effects of a discharge UOTHC and that he might be deprived of many
or all Army and Veterans Administration benefits.  He submitted a statement
in his own behalf.

7.  The applicant’s statement was somewhat similar to that put forth in his
application to the ABCMR.  However, he stated he requested a chapter out of
the Army due to his financial situation (his wife was writing bad checks).
If he tried to divorce his wife, she had told him she would take him for
everything she could.  In January 1990, his noncommissioned officer in
charge said if the applicant could not straighten out his problem he was
going to recommend the applicant be reduced.  The applicant stated after
being told that he panicked and went AWOL.

8.  On 31 May 1991, the appropriate authority approved the applicant’s
request.

9.  On 17 June 1991, the applicant was discharged with a discharge UOTHC,
in pay grade E-1, under the provisions of Army Regulation 635-200, chapter
10, for the good of the service in lieu of trial by court-martial.  He had
completed a total of 11 years, 9 months, and 10 days of creditable active
service, with an additional 3 years and 15 days of inactive service, and
had 445 days of lost time during his last enlistment.

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
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 UOTHC
is normally considered appropriate.

11.  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.

12.  Title 38 of the Code of Federal Regulations, chapter 1, section
3.13(c), provides that, “Despite the fact that no unconditional discharge
may have been issued, a person shall be considered to have been
unconditionally discharged or released from active military …service when
the following conditions are met:…(2) The person was not discharged or
released from such service at the time of completing that period of
obligation due to an intervening enlistment or reenlistment; and (3) the
person would have been eligible for a discharge or release under conditions
other than dishonorable at that time except for the intervening enlistment
or reenlistment.”

13.  Public Law 95-126, dated 8 October 1977, statutorily barred VA
benefits for AWOLs greater than 180 days as well as for conscientious
objectors.

DISCUSSION AND CONCLUSIONS:

1.  The Board is empathetic with the applicant’s personal problems, and it
is noted that in his statement with his discharge request he indicated he
requested a separation and his chain of command did not help him.  As a
Soldier with many years of service, however, he should have realized that
he had at least two other avenues, the chaplain and the Office of the
Inspector General, who might have been able to assist him.  Financial
pressures, such as he mentioned in his statement with his discharge, might
not have been sufficient to approve a hardship discharge.  Searching for
his missing children, as he mentions in his ABCMR application, might have
been.


2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  Considering his lengthy
AWOL, the type of discharge he was given was appropriate.

3.  In addition, it appears Public Law 95-126 would statutorily bar the
applicant from receiving VA benefits (since his AWOL was for more than 180
days) for any medical conditions incurred during his period of service
beginning with his last enlistment of 12 January 1987 even if his discharge
were to be upgraded.

4.  However, since the applicant had previously received four honorable
separations, it appears that the VA is statutorily required to treat him
for any conditions that arose during those honorable periods of service.
Eligibility for veterans' benefits does not fall within the purview of the
Army, however.  He should contact a local office of the VA to inform them,
if necessary, of the applicable statute and request further assistance.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 June 1991; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         16 June 1994.  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

__wdp__  __wfc___  __ded___  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.




                                  __William D. Powers___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015090                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070426                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19910617                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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