RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060015921 


	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. Michael L. Engle

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, in effect, that his under other than honorable conditions discharge be upgraded to honorable.  

2.  The applicant states, in effect, that his mother was dying from cancer and his older brother had been killed on the streets of Baltimore, Maryland, a year earlier. Drugs and alcohol were a major part of his life at the time.  He further states that he felt as though he was having a nervous breakdown and was trying to handle it himself instead of seeking professional help.  He now has high blood pressure and diabetes.  He does not have medical insurance.

3.  The applicant provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 16 March 1983, the date of his discharge.  The application submitted in this case is dated 1 November 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 3 August 1976, the applicant enlisted in the Regular Army for 3 years.   He completed his initial training and was awarded military occupational 71B1O (Clerk Typist).

4.  On 24 April 1979, the applicant was discharged for the purpose of immediate reenlistment in the Regular Army.   He attained the rank of specialist four, pay grade E4, and had completed 2 years, 8 months, and 22 days of honorable active duty service.

5.  On 18 August 1979, the applicant went absent without leave (AWOL).  A Notice of Unauthorized Absence from the United States Army was issued on 
18 December 1979.

6.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged in absentia on 16 March 1983, under the provisions of Army Regulation 600-200, Chapter 14, for desertion.  His service was characterized as under other than honorable conditions.  He completed 4 months of creditable active duty during this period of enlistment and had 1292 days of lost time due to AWOL and desertion.

7.  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.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the applicant's administrative discharge was processed in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

3.  Notwithstanding the applicant's contention that he suffered from drugs and alcohol, and had severe family problems, there is no available evidence to show that he had any mitigating circumstances or that his desertion was a reasonable solution to them.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.
6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 March 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
15 March 1986.  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

_DED__ _  __WDP _  __WFC__  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
AR20060015921
SUFFIX

RECON
 
DATE BOARDED
 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19830316
DISCHARGE AUTHORITY
AR 635-200, ch 14. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.6000
2.

3.

4.

5.

6.