RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070018612


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 Undesirable Discharge (UD) be upgraded.

2.  The applicant states his mother became terminally ill during his military service.  He would go home to take care of her whenever he was able to do so, but when he was reassigned to Fort Carson, CO, he was too far away and so he went absent without leave (AWOL).  He adds he is now in need of Department of Veterans Affairs (DVA) medical treatment and needs to have his discharge upgraded.

3.  The applicant provides a letter from his brother and a copy of his DD Form 214 (Report of Separation from Active Duty).

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 25 June 1974, the applicant enlisted in the Regular Army for 3 years and an assignment with the 82nd Airborne Division, Fort Bragg, NC.  He enlisted from Mebane, NC, a distance of approximately 100 miles from Fort Bragg.

3.  The applicant received Basic Combat Training (BCT) at Fort Dix, NJ, and then was assigned to Fort Benning, GA for Basic Airborne Training.  At Fort Benning, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL on 26 September 1974.  As a result of his misconduct, he was permanently disqualified from airborne training and this, in turn, disqualified him from an assignment with the 82nd Airborne Division.


4.  The applicant was next sent to Fort Leonard Wood, MO for Advanced Individual Training (AIT) in military occupational specialty (MOS) 64C (Truckmaster).  While in AIT, he accepted a second NJP, this time for being AWOL on 2-3 December 1974.

5.  The applicant completed AIT and was reassigned to Fort Carson, CO.  At Fort Carson, the applicant again departed in an AWOL status.  He was absent from 11 June through 4 August 1975.  He returned to military control at Fort Bragg and was assigned to the Fort Bragg Personnel Control Facility (PCF), he was AWOL from that unit during the period 22 August through 7 September 1975.  

6.  Court-martial charges were preferred against the applicant for two specifications of violating Article 86, UCMJ (AWOL).  He consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He acknowledged he was guilty of the charges against him which authorized the imposition of a Bad Conduct or Dishonorable Discharge, and that he did not desire further rehabilitation, nor had he any desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  In a personal statement, he said he wanted a discharge because of "many problems at home."  He did not elaborate further.

7.  The applicant's request for discharge was processed and accepted.  On 17 October 1975, the approving authority approved the applicant's separation with a UD.  On 24 November 1975, the applicant was separated with a UD.  He had 1 year, 2 months, and 25 days of creditable service and 73 days of lost time due to being AWOL.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 8 July 1981, denied his request.

9.  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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant desires a discharge upgrade in order to receive DVA medical benefits.  He states his mother was terminally ill and he went AWOL to care for her.

2.  The Army Board for Correction of Military Records does not upgrade discharges solely for the purpose of qualifying for DVA benefits.

3.  The applicant stated his mother was terminally ill, but provided no evidence to support that claim.  Even with evidence of his mother's illness, the applicant has not shown, and the record does not show that he ever attempted to resolve his problems through his chain of command.  There were many avenues available to him, including compassionate reassignment to be close to home and hardship discharge.  He never availed himself of these opportunities.

4.  The applicant enlisted to serve at Fort Bragg, a mere 100 miles from his home; however, he committed misconduct at Airborne School and was eliminated from the program and his assignment to Fort Bragg.  Had he simply followed the rules, he would have been close enough to his home to see his mother at every opportunity.

5.  The ADRB reviewed the applicant's case in 1981 and denied a request for a discharge upgrade.

6.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__tsk___  __jlp___  __dwt___  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.




								TSK
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070018612



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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