RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070008151 


	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.  Rial D. Coleman

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 he loves his country and was a good soldier.  The applicant continues that he was brutally assaulted by his African American roommates and went absent without leave (AWOL) because he was injured and afraid for his well-being.

3.  The applicant does not provide any additional documentary evidence in support of this application.

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's records show he enlisted in the Army at the age of 19, entered active duty on 29 June 1978, and served until his separation on 14 May 1979.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 11B (Infantryman).  The highest rank he attained while serving on active duty was private first class/pay grade E-3.

3.  The applicant's record reveals that he was reported AWOL on 
11 December 1978, three days after arriving at his first permanent duty station.  The record further shows the applicant remained absent for a period of 109 days until he was apprehended by civilian authorities and returned to military control on 30 March 1979.


4.  Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill Oklahoma Orders Number 101-24, dated 11 April 1979, show that the applicant returned to military control following an AWOL status after being dropped from the rolls of his assigned organization.  The same order assigned the applicant to the United States Army Personnel Control Facility, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma effective 4 April 1979.

5.  Personnel Control Facility, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma Memorandum, undated, shows that the unit commander recommended that the applicant appear before trial by special court-martial.  The record also indicates the applicant was advised of his right for discharge under chapter 10 of Army Regulation 635-200 (Personnel Separations) and that he declined to submit a request at that time.  

6.  On 17 April 1979, 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.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  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 of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and acknowledged that 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.  Personnel Control Facility, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma Memorandum, dated 26 April 1979, shows that when interviewed by the unit commander, the applicant cited personal reasons as the catalyst for going AWOL.  A handwritten, undated, anonymous document contained in the applicant's DA Form 201 (Military Personnel Records Jacket United States Army) indicates, in pertinent part, that the applicant's reason for going AWOL was due to family hardship.  The document continues that the applicant claimed his parents as his dependents, they were both ill, and he was not making enough money in the Army to support his parents and himself.


8.  On 7 May 1979, the separation authority approved the applicant's request and directed his separation under the provisions of chapter 10 of Army Regulation 635-200 and that he receive an Other than Honorable Conditions Discharge Certificate.  The record shows that on 14 May 1979, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 0 years, 6 months, and 29 days of creditable active military service and an under other than honorable conditions character of service.

9.  Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma Memorandum, dated 9 May 1979,  discharged the applicant under the provisions of Chapter 10 of AR 635-200 (Personnel Separations) effective 
14 May 1979.

10.  There is no evidence of the applicant ever being physically assaulted in his available personnel or medical records.

11. 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, 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.

12.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an honorable discharge based on the fact that he only went AWOL because he was brutally assaulted by his African American roommates and he was in fear for his well-being was carefully considered and determined to be without merit.

2.  Neither the applicant's personnel records nor his medical records contain any documentary evidence of him ever being physically assaulted.

3.  Evidence of records shows that the applicant consulted with legal counsel prior to submitting a voluntary written request for discharge for the good of the service under the provisions of Army Regulation 635-200.  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 of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and acknowledged that 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.

4.  The record shows that the applicant deserted his unit three days after arriving at his first permanent duty station and remained absent for a period of 109 days until he was apprehended by civilian authorities and returned to military control.

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JEV____  _TMR __  _JCR____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

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.




__James E. Vick__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.