RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060016354 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Kenneth Wright

Chairperson

Mr. Patrick McGann

Member

Ms. Karmin Jenkins

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 be upgraded to honorable to allow him to obtain Department of Veterans Affairs (DVA) benefits. 

2.  The applicant states that his mother was gravely sick and he was on leave to be with her, that it was near the end of his expiration term of service, and that he opted to discharge early to stay with her during her illness.  He contends that because he chose to leave early he was stripped of his rank and busted back to private prior to his discharge and that his mother was his priority at that time.  

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 February 1980.  The application submitted in this case is dated 
13 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.  The applicant enlisted on 20 September 1978 for a period of 3 years.  He successfully completed basic training and advanced individual training in military occupational specialty 91B (medical specialist).

4.  While on emergency leave, the applicant went absent without leave (AWOL) on 11 June 1979 and returned to military control on 21 October 1979.  He went AWOL again on 23 October 1979, was arrested by civilian authorities. and returned to military control on 18 January 1980.  On 20 January 1980, charges were preferred against the applicant for the AWOL periods.    

5.  On 23 January 1980, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an other than honorable discharge.  He elected not to make a statement in his own behalf. 

6.  On 23 January 1980, the applicant was interviewed and stated that his AWOL was caused by family problems (mother was ill).  The applicant was asked if he would like to defend his AWOL and then put in for a compassionate reassignment and he stated that his only desire was to get out of the Army as soon as possible and that he would not wait for anything other than a chapter 10 discharge.

7.  On 8 February 1980, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

8.  Accordingly, the applicant was discharged under other than honorable conditions on 20 February 1980 under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service, in lieu of court-martial.  He had served 9 months and 25 days of total active service with 221 days of lost time.

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

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 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.  

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’s claim that family problems caused him to go AWOL does not provide a sufficient basis for upgrading his discharge.  Records show he was asked if he would like to apply for a compassionate reassignment and he stated that his only desire was to get out of the Army as soon as possible and that he would not wait for anything other than a Chapter 10 discharge.       

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.
 
3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  Since the applicant’s record of service included 221 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or honorable discharge.

6.  Records show the applicant should have discovered the alleged injustice now under consideration on 20 February 1980; therefore, the time for the applicant to file a request for correction of any injustice expired on 19 February 1983.  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

KW_____  __PM___  __KJ____  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.




___Kenneth Wright_____
          CHAIRPERSON




INDEX

CASE ID
AR20060016354
SUFFIX

RECON

DATE BOARDED
20070510
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800220
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.