RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 August 2007
      DOCKET NUMBER:  AR20070004047


      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. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 be upgraded to
honorable.

2.  The applicant states, in effect, that he was young and didn't
understand why the Army would not let him come home to take care of his
father who had just had a stroke.  He adds that his younger brother was
doing drugs and his parents needed help at home.  He filed for a hardship
discharge and was even sent on temporary duty (TDY) to an Army depot near
his parent's home to help out.  His request for a hardship discharge was
denied so he went AWOL (absent without leave) for 31 days but then he
turned himself in.

3.  In support of his request, the applicant submits three character
reference letters.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Applicant's counsel has remained silent except to ask the Board to, "Please
take appropriate action."

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 30 January 1979.

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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

3.  The evidence shows that the applicant enlisted for 6 years in the US
Army Reserve, on 26 March 1977.  On 27 April 1977, he enlisted in the
Regular Army
for 3 years with a guaranteed assignment to Europe for duty in the military
occupational specialty (MOS) 94B, Food Service Specialist.  He successfully
completed basic combat training at Fort Jackson, South Carolina, and his
advanced individual training at Fort Dix, New Jersey.  On completion of
his advanced training, on 18 August 1977, he was awarded the MOS 94B.

4.  On the date of the applicant's entry on active duty, he was 17 years, 8
months and 20 days of age.

5.  On 17 August 1977, the applicant's duty status was changed from
"Present for Duty" to "Hospital."  On 16 September 1977, his duty status
was changed from "Hospital" to "Present for Duty."  No further details
relative to his hospitalization are available.

6.  On 22 March 1978, the applicant's duty status was changed from "Present
for Duty" to "Hospital."  On 28 March 1978, his duty status was changed
from "Hospital" to "Present for Duty."  No further details about his
hospitalization are available.

7.  On 18 May 1978, the applicant received nonjudicial punishment, under
the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ), for failing to go to his appointed place of duty on 14 May 1978.
The imposed punishment was a forfeiture of $92.00 (suspended for 2 months).
 The applicant did not appeal the punishment.

8.  On 5 October 1978 three orders were prepared by Headquarters, Presidio
of San Francisco, Presidio of San Francisco, California.  In Orders 195-81,
he was attached to the Sacramento Army Depot, Sacramento, California,
with an effective date, 15 August 1978, for an indefinite period, pending a
compassionate reassignment.  In Orders 195-82, he was attached to the
Sacramento Army Depot, with an effective date, 15 August 1978, for 14 days
pending a compassionate reassignment.  In Orders 194-83, he was relieved
from attached to the Sacramento Army Depot, with an effective date 10
October 1978, to return to his parent unit.

9.  The applicant was reported as absent without leave from his unit on
21 October 1978.  On 30 November 1978, the applicant surrendered to
military authorities at Fort Dix, New Jersey.
10.  On 1 December 1978, the applicant underwent a separation physical
examination.  On the Report of Medical History the applicant completed, he
reported he had undergone ear surgery at the Philadelphia Naval Hospital in
1978.  On the Report of Medical Examination, the examining physician made a
diagnosis the applicant had a hearing loss, with an H-2 physical profile;
however, he was determined to be qualified for separation.

11.  On 4 December 1978, the applicant was interviewed at the Fort Dix
Personnel Control Facility (FDPCF), Fort Dix.  In the remarks section of
FDPCF Form 691 is an entry which reads as follows:  "SM (service member)
states he was in a hold over status for almost a year while he underwent
two operations for his hearing.  After AIT (advanced individual training)
he received orders for Germany but while on leave went to California
because his foster father was undergoing treatment for cancer.  He was
attached to an Army depot pending a compassionate reassignment but when
it was disapproved he did not make his port call.  He wants out of the
Army.  I recommend Chap 10/OTH (Chapter 10, under other than honorable
discharge)."  The form was signed by the PCF Commander.

12.  In response to two questions on this form, the applicant responded as
follows: to the question, "I want help with my problem and then wish to
return to duty."  He responded, "No."  To the question, "I want to be
separated from the Army as soon as possible."  He responded, "Yes."

13.  On 4 December 1978, charges were preferred against the applicant for
absenting himself without authority on 21 October 1978 and remaining so
absent from his unit, the 21st Adjutant General Replacement Battalion, in
Germany, until 30 November 1978.

14.  On 4 December 1978, the applicant voluntarily submitted a request for
discharge for the good of the service.  In his request the applicant stated
he understood he could request discharge for the good of the service
because charges had been filed against him under the Uniform Code of
Military Justice (UCMJ), which could authorize the imposition of a bad
conduct or dishonorable discharge.  He added that he was making his request
of his own free will and had not been subjected to coercion whatsoever by
any person.  The applicant stated he had been advised of the implications
that were attached to his request and that by submitting his request, he
acknowledged that he was guilty of the charge against him or of a lesser or
included offense which also authorized the imposition of a bad conduct or a
dishonorable discharge.  Moreover, he stated that under no circumstances
did he desire further rehabilitation for he had no desire to perform
further military service.

15.  Prior to completing his request for discharge for the good of the
service, the applicant was afforded the opportunity to consult with
counsel.  He consulted with counsel on 4 December 1978 and was fully
advised of the nature of his rights under the UCMJ.  Although he was
furnished legal advice, he was informed that the decision to submit a
request for discharge for the good of the service was his own.

16.  The applicant stated that he understood that if his request were
accepted, he could be discharged under other than honorable conditions and
furnished an under other than honorable conditions discharge certificate.
He was advised and understood the effects of an under other than honorable
conditions discharge and that issuance of such a discharge could deprive
him of many or all Army benefits that he might be eligible for, that he
might be ineligible for many or all benefits administered by the Veterans
Administration [now the Department of Veterans Affairs], and that he might
be deprived of his rights and benefits as a veteran under both Federal and
state law.  He also understood that he could expect to encounter
substantial prejudice in civilian life because of an under other than
honorable conditions discharge.

17.  The applicant was advised that he could submit a statement in his own
behalf, which would accompany his request for discharge.  The applicant
submitted a statement in his own behalf which read as follows, in pertinent
part:

      "My (foster) father who I have lived with for a year and a half
      contracted cancer.  Doctors operated and removed 80%.  He is now
      seeing the doctor 3 maybe 4 times a month every other month for shots
      to keep the cancer from spreading.  My father is now 76 years old.
      Also, my mother is in her 60s.  She has undergone surgery on her gall
      bladder.  Surgery was needed because of nerves due to my younger
      brother (18 years) he has dropped out of school, he refuses to even
      try and find a job, he is very rebellious and will not help around he
      house.  During AIT here at Fort Dix, I contracted a ear infection in
      which I underwent 2 ear surgerys (sic) first operation my hearing was
      impeaded (sic) 65%, after the 2nd operation my hearing was still
      impeaded (sic) but improved to 30% loss of hearing."

18.  The applicant's chain of command unanimously recommended approval of
his request for discharge for the good of the service and on 30 January
1979, the approval authority, a Major General, approved the applicant's
request for discharge for the good of the service.

19.  The applicant was discharged with an under other than honorable
conditions discharge, in the rank and pay grade of Private, E-1, on 30
January 1979, under the provisions of Army Regulation (AR) 635-200, Chapter
10, for the good of the service.

20.  On the date of his discharge, the applicant had completed 1 year, 7
months, and 25 days creditable active military service, with 40 days time
lost.

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

22.  AR 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, at any time
after the charges have been preferred, 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, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the Soldier's overall record and if the
Soldier's record is so meritorious that any other characterization clearly
would be improper.

23.  AR 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, or is otherwise so meritorious that
any other characterization would be clearly inappropriate.  Whenever there
is doubt, it is to be resolved in favor of the individual.

24.  AR 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 separation specifically allows such characterization.

25.  In the character reference letters written in behalf of the applicant,
he is described by his childhood friend, a Supervisor – District Three,
Yuba County, California, as loyal and trustworthy; a good family man.

26.  In a second character reference letter, another acquaintance and
friend describes him as having the utmost of respect and loyalty to the
military services. He is describes as often speaking of his training and
the time he served in the Army with pride and honor – even though he was
discharged under less than honorable circumstances.  He is, his friend
states, a Soldier that he and other Americans can be proud of that served
time and should be given the opportunity to receive the benefits that come
with the sacrifices made for serving in the Armed Forces.

27.  In a third character reference letter, a friend and acquaintance of
some four years describes him as one of the most thoughtful and generous
people he knows.  He states, if you need help with anything, the man will
be at your side.  He is a hard worker and no job is too small or large that
he doesn't give his best.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that he was young and didn't
understand why the Army would not let him come home to take care of his
father who had just had a stroke.  He adds that his younger brother was
doing drugs and his parents needed help at home.  He filed for a hardship
discharge and was even sent on temporary duty (TDY) to an Army depot near
his parent's home to help out.  His request for a hardship discharge was
denied so he went AWOL (absent without leave) for 31 days but then he
turned himself in.

2.  The applicant is not clear about all the details related to his
discharge from military service.  The evidence does show there was
turbulence in his life related to the well-being of his family, and foster
family, members.  The evidence further shows he applied for a compassionate
reassignment, not a hardship discharge, because his foster father had been
diagnosed as having cancer.  He did not have a stroke as the applicant now
reports.  The evidence further shows that at the time he returned from his
unauthorized absence, he reported his mother, or foster mother, had
undergone surgery on her gall bladder.  His brother, he stated, was
rebellious and would not look for a job to help out the family in any way.


3.  Even though he did not mention his own personal medical issues in his
request for an upgrade of his discharge, the evidence shows he did have a
hearing problem which was treated and recorded during his separation
physical examination.  These medical issues occurred before he was released
to ship
overseas, before he went on leave and realized the full magnitude of his
family's sad state of affairs, before he departed on his unauthorized
absence, and before his discharge for the good of the service, to avoid
trial by court-martial.

4.  The applicant now states he was sent on TDY to an Army depot near home.
 The evidence shows the Army attached him to Sacramento Army Depot for the
purposes of applying for a compassionate reassignment which was
disapproved.

5.  The applicant's contention that he was young and did not understand why
the Army would not let him go home and take care of his, not only his
father, but the remainder of his family as well, has some merit.  It
appears that perhaps he was a young seventeen-plus year old Soldier who was
overwhelmed and decided his place was at home and not in Germany.  He took
appropriate action in seeking a compassionate reassignment; however, his
absenting himself without authority is not totally excusable.  A more
mature individual would have gone to Germany and worked from within the
system in getting a compassionate reassignment or even a hardship discharge
and would have avoided the stigma that a less than honorable discharge
brings with it and which he has had to endure.

6.  In order to justify correction of a military record, the applicant
must show, or it must otherwise satisfactorily appear, that the record is
in error or unjust.  Based on the evidence in the applicant's record, it
appears the applicant did all he knew to do; but, in frustration,
combined with his youth and a total lack of good judgment, he selected
the wrong course of action to pursue which resulted in his being
discharged with a less than honorable discharge.

7.  In view of the foregoing, the applicant is entitled to an upgrade of
his under other than honorable conditions discharge to a general, under
honorable conditions, discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____e___  ___J____  __RTD __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by upgrading the applicant's under other than
honorable conditions discharge to a general, under honorable conditions,
discharge.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
an upgrade of the applicant's under other than honorable conditions
discharge to a fully honorable discharge.




                                  ____Lester Echols_________
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20070004047                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070823                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19790130                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.0039                                |
|3.                      |144.0133                                |
|4.                      |144.7100                                |
|5.                      |144.9301                                |
|6.                      |                                        |


-----------------------
[pic]