RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  05 February 2008
	DOCKET NUMBER:  AR20070013695 


	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:


Mr. Kenneth L. Wright

Chairperson

Mr. Antonio Uribe

Member

Mr. Ronald D. Gant

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 an honorable discharge.

2.  The applicant states that he has tried to get his discharge upgraded for the past 20 years and he has never received any response.  He states, in effect, that he served 3 good years of military service and had received one honorable discharge.  He made a terrible mistake by being absent without leave (AWOL) and he has been trying to correct it for a very long time.  He loves and honors his country.

3.  The applicant provides a 12 September 2007 self-authored statement.

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 entered active duty on  
1 August 1977 for 3 years.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 34K (Tactical Wire Operator Specialist).  

3.  He served with Headquarters and Headquarters Company, 4th Battalion,  
23rd Infantry, 173rd Infantry Brigade at Fort Richardson, Alaska.

4.  On 12 February 1980, the applicant immediately reenlisted.

5.  His military service records show that he went AWOL during the period  
25 March 1980 to 15 October 1980.

6.  On 23 October 1980, charges were preferred against the applicant for being AWOL during the period 25 March 1980 to 15 October 1980.

7.  On 24 October 1980, 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.

8.  The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provision of Army Regulation 635-200 (Personnel Separation), chapter 10.

9.  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 submitted a statement in his own behalf.

10.  In his statement he said, in effect, that he joined the Army to get a skill and to raise his education level.  He wishes to get out of the military service because he knows that if he was to stay he would probably go AWOL again.  He cannot adjust to the military anymore and he cannot keep his mind on his duties.  So, he thinks it is better for him and the military if he gets out.

11.  On 26 November 1980, the applicant's commander forwarded his recommendation for separation to the approving authority.  On 8 December 1980, 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 the lowest enlisted grade of E-1.

12.  On 13 January 1981, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 4 months and 11 days of Net Active Service This Period and 2 years, 6 months, and 10 days of Total Prior Active Service.  He had accrued 201 days of time lost.

13.  In the self-authored statement that the applicant submitted he states, in effect, that for the past 25 years he has been married and has three wonderful children.  His son is currently serving in the military and has served 15 months in Iraq.  The applicant states he is a Kentucky colonel and he has served 4 years in law enforcement.  He is currently a member of the Masonic Lodge and a building manager for a medical center.  He had asked his commander for leave because his grandmother was in the hospital looking to pass away.  Also, he has tried to get his discharge changed for the past 25 years.

14.  The applicant applied to the Army Discharge Review Board (ADRB) on 
29 March 1983.  On 30 March 1984, ADRB reviewed the applicant's record and determined that his discharge was proper and equitable.  On that basis the applicant’s request for upgrade of his discharge was denied.

15.  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.

16.  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.

17.  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 contends that his under other than honorable conditions discharge should be upgraded to a general or an honorable discharge.

2.  The evidence shows the applicant was AWOL from 25 March 1980 to  
15 October 1980.  There is no evidence that shows the applicant's grandmother was seriously ill or evidence that the applicant requested emergency leave.  The applicant went AWOL on his own accord.  As such, an under other than honorable conditions discharge was equitable and proper.

3.  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 of 201 days renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

4.  The self-authored statement submitted by the applicant is noted; however, his post-service achievements are not normally sufficient to warrant an upgrade of a properly issued discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __AU___  __RDG___  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.



____Kenneth L. Wright____
          CHAIRPERSON
INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080205
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.