RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 August 2007
	DOCKET NUMBER:  AR20070004680 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. Rodney E. Barber

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 under other than honorable conditions discharge be changed to a general under honorable conditions discharge.

2.  The applicant states, in effect, that he went absent without leave (AWOL) after his unit denied his request for leave to go home and help solve some family problems.  He continues that his father was on drugs and his mother was having problems with his brother, who was running around with a gang. 

3.  The applicant further states that he was young and inexperienced and was not given a fair opportunity to make an informed decision; he was not advised of any options and not advised of the results of the discharge; and he was told that the rights he would lose as a veteran would be minor.  If he had been properly informed and advised as a result of getting the discharge, his decision would have been different.

4.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 15 February 1984; an undated Headquarters XVIII Airborne Corps and Fort Bragg Letter of Appreciation; a Company B, 3rd Battalion (Airborne), 325th Infantry, 82nd Airborne Division Letter of Commendation, dated 13 August 1982; a letter of commendation, dated 
14 May 1990, and an undated magazine article titled "Paralegal Focus on L___ A_____ R________."

CONSIDERATION OF EVIDENCE:

1.  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.

2.  The applicant was born on 29 April 1961.  He had prior service and on 7 April 1981, he enlisted in the Regular Army.  He successfully completed advanced individual training and was awarded military occupational specialty 11B (Infantryman).
3.  On 22 May 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL for the period 22 October 1982 through 8 November 1982.

4.  A DD Form 458 (Charge Sheet), dated 14 October 1983, shows charges were preferred against the applicant for being AWOL for the period 6 July 1983 through 13 October 1983.

5.  On 19 October 1983, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He waived the right to provide statements on his own behalf.

6.  The applicant stated in a personal interview that the reason he went AWOL was due to personal and adjustment problems.  He was being harassed at his unit and felt that he was being denied opportunities for improvement since his unit would not send him to school.  His parents had separated and his younger brother was becoming a problem for his mother and that he went to Puerto Rico to settle the problems.  The applicant stated that he desired to be discharged from the service.

7.  On 2 November 1983, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 15 February 1984, the applicant was discharged with a characterization of service of under other than honorable conditions.  The applicant had completed 2 years, 
10 months, and 7 days of creditable active service during that enlistment with 116 days of lost due to being AWOL.

8.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

9.  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.  There is no evidence and the applicant has not provided evidence that shows he sought assistance from his chain of command, chaplain, or community support service before his first instance of AWOL or that his first instance of AWOL was for assistance with his family problem.  It is unfortunate that the applicant's mother faced difficulties at that time from his younger brother's behavior; however, the applicant was not authorized an excused absence.  Therefore, there is no basis for this argument.  

2.  The applicant contends that he was young and inexperienced at the time of his offenses.  Records show that the applicant was 19 years, 11 months, and 
10 days of age at the time his active service began and 22 years, 9 months, and 18 days of age at the time of his discharge.  After his Article 15, he knew there would be consequences for his actions.  In addition, he had prior service.  Therefore, his contention that he was young at the time of his offenses does not mitigate his indiscipline.

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  Evidence of record shows that the applicant was advised about his rights and that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.


6.  The applicant's records show that he had two instances of AWOL and received an Article 15.  He had completed 2 years, 10 months, and 7 days of creditable active service with 116 days of lost due to being AWOL.  Regrettably, based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__PMS__  __REB __  __RCH__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_____ Paul M. Smith __
          CHAIRPERSON




INDEX

CASE ID
AR20070004680
SUFFIX

RECON

DATE BOARDED
28 AUGUST 2007
TYPE OF DISCHARGE
UCOTH
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.0133.0000
2.
144.0135.0000
3.

4.

5.

6.