RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070009272 


	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 L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. James R. Hastie

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.

2.  The applicant states, in effect, that he requested leave to get married.  His commander denied the request, so he went AWOL (absent without leave).  He was young and immature.  While AWOL he found out that the girl he intended to marry was cheating on him.  He became depressed and began drinking.  He is sorry for going AWOL.  He further believes that his discharge is inequitable because it is based on this one isolated incident, with no other adverse action during his 1 year and 5 months of military service   

3.  The applicant provides copies of his Report of Separation from Active Duty (DD Form 214), Discharge Under Other Than Honorable Conditions Certificate, and a letter of support from his church pastor.

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.  On 23 August 1977, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 19D1O (Cavalry Scout).  He was subsequently placed on orders for assignment to the United States Army, Europe.

3.  On 28 March 1978, the applicant went AWOL.  He was apprehended and returned to Army control effective 7 November 1978.

4.  On 13 November 1978, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 29 March 1978 to on or about 7 November 1978 (223 days).
5.  On 14 November 1978, 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.  He stated that he was 21 years old and had an eleventh grade education.  The reason he joined the United States Army was to be out from under the pressure of his parents and because there were no jobs available for him at that time.  He further stated that he enlisted to be a utility helicopter mechanic and got a bum steer when taken out of this training.  He said that he disliked the United States Army because of the way he was treated and went AWOL.  He could not adapt to the military way of life and wanted out.  He was sure that he could get a job making more than his military pay.

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 December 1978, the separation authority approved the applicant’s request for discharge and directed that he be issued a discharge under other than honorable conditions.  On 1 February 1979, the applicant was discharged accordingly.  He had completed a total of 10 months and 1 day of creditable active military service and had accrued 223 days of time lost due to AWOL.

8.  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.

9.   Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days includes a punitive discharge and confinement for 1 year.

10.  On 12 July 1989, the applicant’s pastor wrote that, given the same situation again, the applicant would now react differently.  The pastor stated that the applicant was a hard worker and a good provider for his family.  He asked that the applicant’s discharge be upgraded.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  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.

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

3.  At the time of his discharge the applicant stated his reasons for going AWOL had to do with his dislike for the United States Army because of the way he was treated.  He made no mention of wanting to get married, or that his girl had cheated on him.   

4.  The applicant’s contention that the characterization of his discharge is inequitable is not substantiated by any evidence of record.  Furthermore, there is no available evidence showing that he had any mitigating circumstances or that his AWOL was a reasonable solution to them.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

  __JRH __  __ECP _  __LDS       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.






______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009272
SUFFIX

RECON
 
DATE BOARDED
20071204 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19790201
DISCHARGE AUTHORITY
AR 635-200 . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.