RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070008368 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Chester A. Damian

Member

Mr. 

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 under other than honorable conditions discharge be upgraded to a general or honorable discharge. 

2.  The applicant states, in effect, that he does not feel that the extenuating circumstances of the processing of his discharge were considered.  He states that there were definite miscommunications of orders from his superior officers.

3.  The applicant provides a copy of a written statement, dated 6 April 2007.

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 military service records show that he enlisted in the United States Army Reserve (USAR) and subsequently entered active duty for training on 27 November 1981.  He completed the necessary training and was awarded the military occupational specialty (MOS) 35B (Electronic Instrument Repairer).  He was honorably released from active duty for training on 14 August 1982 after completing 8 months and 18 days of active service.

3.  On 25 January 1983, the applicant enlisted into the Regular Army for a period of 3 years.  He attended advanced individual training and was awarded MOS 11H (Heavy Antiarmor Weapons Infantryman).

4.  His records show that he departed absent without leave AWOL on  
12 October 1985.  He was dropped from the rolls of the Army on 10 November 1985 and returned to military control on 29 July 1986.  On 31 July 1986, the applicant made a statement as to why he went AWOL.  In his statement, he stated, in effect, that the reason he went AWOL was because he was unable to extend his 15 days of emergency leave to be with his father during his heart surgery.
5.  A DA Form 4187 (Personnel Action) shows that the applicant's status was changed from ordinary leave to AWOL effective 0001 hours, on 12 October 1985.

6.  On 5 August 1986, the applicant was charged with one specification of AWOL for the period 12 October 1985 to 29 July 1986.  The applicant voluntarily requested discharge for the good of the service under the provision of Army 
Regulation 635-200 (Personnel Separation), chapter 10.

7.  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.

8.  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.  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.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Discharge Certificate.  The applicant was advised that he may submit any statements he desires in his own behalf, which will accompany his request for discharge.  The applicant did not submit a statement in his own behalf.

9.  On 11 August 1986, the applicant's commander forwarded his recommendation for separation to the approving authority.  In the commander's recommendation it was stated that the applicant has no motivation for continued service and will not respond to either counseling or rehabilitation.

10.  On 22 September 1986, the approving authority approved the applicant's request and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.  Upon discharge the applicant was reduced to private/pay grade E-1.

11.  On 14 October 1986, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 2 years, 11 months, and 3 days of active military service and that he accrued 289 days of time lost.


12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

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

14.  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.

15.  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.  The applicant requests that his under other than honorable conditions discharge be upgraded to a general or an honorable discharge.

2.  The evidence shows the applicant was AWOL from 12 October 1985 to  
29 July 1986.  As such, an under other than honorable conditions discharge was equitable and proper.

3.  The applicant's statement that he went AWOL because he was unable to extend his 15 days of emergency leave to be with his father during his heart surgery is noted.  A DA Form 4187 shows that the applicant's status had changed from ordinary leave to AWOL effective 0001 hours, on 12 October 1985.  There is no evidence of an emergency leave request in the applicant's military service records.  As such, his statement is not sufficient to warrant a change to a properly issued discharge.
4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The extensive length of his AWOL renders his service unsatisfactory. Therefore, he is not entitled to either an honorable or a general discharge.

5.  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.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____cd__  ____rdg__  ___cad__  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.




_________Carmen Duncan________
          CHAIRPERSON




INDEX

CASE ID
AR20070008368
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071030
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.