RECORD OF PROCEEDINGS


	IN THE CASE OF:    	


	BOARD DATE:	  20 December 2007
	DOCKET NUMBER:  AR20070009719 


	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:


Mr. Richard T. Dunbar

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Jerome L. Pionk

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 reenlisted in the Regular Army to serve his country and to provide for his family.  During his training his wife left him and took their daughter.  His daughter was placed in a compromised living condition and he went to her aide.  He further states that this was a difficult decision for him and he regrets his leaving the military in such an unlawful way.  He contends that he did not know how to address his family situation and reacted rather than thinking through the situation.  He further contends that he attempted to gain separation during that time but was denied so he promptly surrendered himself. 

3.  The applicant provides no additional documentation.

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 are not available for review.  However, his Certificate of Release or Discharge from Active Duty (DD Form 214) shows that he had completed 3 years and 15 days of creditable active duty; and 5 years, 8 months and 22 days of inactive service prior to his reenlistment in the Regular Army on 
3 February 1997. 

3.  Item 29 (Dates of Time Lost During this Period) of the applicant’s DD Form 214 shows that the period from 3 June to 29 September 1997 (approximately 
118 days) was lost time.



4.  The discharge packet is missing from his military records.  However, his 
DD Form 214 shows that he was administratively discharged on 10 December 1997, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial [for the good of the service].  His service was characterized as under other than honorable conditions.  He had completed 6 months and 
9 days of creditable active duty and had 118 days of lost time.

5.  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.

6.  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.
  
7.  On 21 June 2007, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge. 

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  While the applicant contends that he unlawfully left the Army because of family problems, there is no available evidence to show that he had any mitigating circumstances or that his absence without leave was a reasonable solution to them.  

3.  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.

4.  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

__RTD __  __JLP  __  __JRM__  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.





_       Richard T. Dunbar ____
          CHAIRPERSON




INDEX

CASE ID
AR20070009719
SUFFIX

RECON
 
DATE BOARDED
20071220 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19971210
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.70000
2.

3.

4.

5.

6.