RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060017213 


	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 F. Crain

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

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 discharge under other than honorable conditions be upgraded to honorable.  The applicant requests to personally appear before the Board.

2.  The applicant states, in effect, that he was married and had a child when he enlisted in the Regular Army.  He was assigned to Fort Hood, Texas, where he worked hard and everything was great for 18 months.  Then he was reassigned to Germany.  Since he was only a private first class, he had to pay the cost of moving his family.  His wife was pregnant.  He was not eligible for government quarters.  It was very expensive.  He was given a 30 day emergency leave to return his family to the United States.  He further contends that his commander told him to apply for a hardship discharge at the nearest Army post.  When he asked to see the chaplain at Fort Devens, Massachusetts, he was instead taken to the Post Commander.  The commander ordered him to return to Germany.  Instead, he panicked and went back home, where he got a job and supported his family.  He was arrested and taken to Fort Dix, New Jersey, where he was charged for being absent without leave (AWOL).  He had to decide between a court-martial and a prison sentence, or requesting a discharge for the good of the service.  He says that he was very scared at the time.  Now he wants a chance to right a terrible wrong.  He says if he knew then what he knows today, he would have taken his day in court.  He contends that he had a case; that he was right, and that his family comes first, then and now.      

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214), and two letters of support.

CONSIDERATION OF EVIDENCE:

1.  On 22 October 1980, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11H1O (Heavy anti-Armor Weapons Crewman).

2.  On 7 April 1982, the applicant was assigned for duty as a heavy anti-armor weapons crewman with the 1st Battalion, 6th Infantry, 1st Armored Division, in the Federal Republic of Germany. 

3.  On 8 May 1982, the applicant went AWOL and was dropped from the rolls of the Army on 8 June 1982.  He was apprehended on 9 May 1983.

4.  On 9 May 1983, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from 5 October 1969 to 26 June 1975 (365 days).

5.  On 11 May 1982, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

7.  On 18 May 1983, the separation authority approved the applicant’s request for discharge and directed that he be issued a Discharge Certificate Under Other Than Honorable Conditions.  On 24 June 1983, the applicant was discharged accordingly.  He had completed 1 year, 8 months and 2 days of creditable active military service and had accrued 365 days of lost time due to AWOL.

8.  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.

9.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a punitive discharge and confinement for 
1 year.
11.  On 9 November 2006, the town manager and fire chief, retired, of the applicant’s hometown, wrote letters of support indicating that the applicant was a long time resident of the community and was a very dedicated father, husband, and friend.  Furthermore, he is a hard working, productive, and active member of his community who participates in town meetings and cares about his community. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence on the record to fully consider this case, a formal hearing is not required.

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.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  Notwithstanding the applicant's assertion that it would right a wrong by upgrading his discharge, there is no available evidence to show that he had any mitigating circumstances or that his AWOL was a reasonable solution to them.  

5.  The applicant’s good post-service conduct is noted.  However, it does not sufficiently mitigate his excessive act of indiscipline during his military service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RSV __  __DLL __  __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 F. Crain______
          CHAIRPERSON




INDEX

CASE ID
AR20060017213
SUFFIX

RECON

DATE BOARDED
20070531
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19830624
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.