RECORD OF PROCEEDINGS


	IN THE CASE OF:	  .


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20060016455 


	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.


Ms. Catherine C. Mitrano

Director

Mr. G. E. Vandenberg

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Ronald D. Gant

Member

Mr. Rowland C. Heflin

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 be upgraded.

2.  The applicant states that at the time of his discharge he was having serious family problems.  When his request for leave was denied he went AWOL (absent without leave) to take care of his family problem.  He believes that it was unjust for him to be denied leave and that his total period of service would be considered less than honorable.  Since his discharge he has worked out his family problems and has been married for 25 years.  His wife has served during Operation Iraqi Freedom and he does not want his children to remember him as an AWOL veteran.

3.  The applicant provides copies of two DD Forms 214 (Report of Separation From Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 15 September 1987, the date of his discharge.  The application submitted in this case is dated 3 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.  The records show the applicant entered active duty on 4 February 1977.  He was honorably discharged on 8 August 1979 with an immediate reenlistments.  He was promoted to sergeant (E-5) on 3 August 1982 and reenlisted a second time on 1 July 1985.

4.  The first incident of a negative nature in the record is the applicant's period of AWOL from 10 March 1987 until 17 April 1987.  It is noted that the applicant voluntarily surrendered to military authorities.  

5.  On 24 April 1987 court-martial charges were preferred for this period of AWOL.
6.  On 27 April 1987, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge, and that there is no automatic upgrading or review of a less than honorable discharge.

7.  The unit sergeant major (SGM) interviewed the applicant and notes that the applicant had been considered for discharge under the provisions of Army Regulation 635-200, chapter 14 (misconduct) due to financial problems.  A board of officers heard his case and voted to retain the applicant.  Upon arrival in Germany the applicant requested a Chapter 14 discharge and when he was told that there was no evidence to support such a discharge, he went AWOL.  The SGM states that the applicant had a strong desire to be discharged and since he was only a sergeant (E-5) with over 11 years of service he was a definite candidate for separation under the Quality Management Program (QMP).  The SGM recommended an under other than honorable characterization of service.

8.  His unit commander recommended approval of the separation request.  In his recommendation he noted that the applicant was a poor candidate for retention, and that his conduct rendered him triable by a court-martial under circumstances that could lead to a bad conduct or dishonorable discharge.  He recommended an under other than honorable characterization of service.

9.  The discharge authority approved the applicant's request and directed that the applicant be reduced to the lowest enlisted grade and discharged under other than honorable conditions.  

10.  The applicant was discharged on 15 September 1987 under the provisions of Army Regulation 635-200, chapter 10.  He had 10 years, 6 months, and 1 day of creditable active service with 37 days of lost time and 147 days of excess leave. 

11.  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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1. The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The applicant had successfully argued to be retained when he appeared before a board of officers due to financial problems.  Just a few months later he turned around and requested to be discharged for this same reason and when he it was denied he went AWOL.  As an NCO with 10 years of service he knew the seriousness and consequences of that action.

3.  While the applicant's claims good post service citizenship, cites his wife’s contribution to the Army, and claims resolution of his family and financial problems, these items are unsubstantiated.

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 this requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 September 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 September 1990.  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

__ RCH_ _  __MKP__  __RDG _  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.



__     M. K . Patterson___________
          CHAIRPERSON

INDEX

CASE ID
AR200616455
SUFFIX

RECON
 
DATE BOARDED
20070614 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19870915
DISCHARGE AUTHORITY
AR .635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.