IN THE CASE OF:	  

	BOARD DATE:	  15 May 2008

	DOCKET NUMBER:  AR20080002477 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge be upgraded.

2.  The applicant states, in effect, that he reported two Soldiers who were in civilian clothes and under the influence of LSD (lysergic acid diethylamide).  After that, he was considered a “barracks rat.”  His commander, Captain S___, told him to go on leave.  About one hour prior to his departure on leave, Soldiers David A___ and David C___ coaxed him into making amends over a drink.  The drink turned out to be laced with LSD.  On his departure, they told him to have a nice trip.  It was a horrible flight back to the States from Germany.  He informed Captain S___ by phone from the States, and Captain S___ told him that he would have to bring the Soldiers up on charges.  The applicant states that he had already seen what that caused, and he told Captain S___ that he was in fear of his life.  No documentation of this or any of the other incidents was placed in his records.

3.  The applicant states that he was stabbed in the liver, almost fatally, while he was on leave.  Military police came to the hospital.  He was in a coma for nine days.  The military police said they would come back, but they never did.  The effect of the LSD killed his self-esteem.  The failure of Captain S___ to put an entry in his records confirmed in his mind that he was used as a pawn.

4.  The applicant provides two self-authored statements, both faxed on              19 December 2006; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); and correspondence from his Member of Congress.

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 enlisted in the Regular Army on 3 May 1977.  His enlistment contract stated in part, “With regard to any other benefits, I understand that only those promises, if any, recorded herein or on Annex(es) A attached hereto will be honored and that any other promises not contained therein made by any person are not effective and will not be honored.”  He completed basic training and advanced individual training and was awarded military occupational specialty  16J (Defense Acquisition Radar Crewman).

3.  A memorandum for record, dated 1 December 1981, indicates that the applicant had 46 days of lost time prior to going absent without leave (AWOL) on 27 June 1978.  

4.  On 19 August 1981, the applicant was notified that he was charged with desertion effective 27 June 1978 and he was eligible for a discharge in absentia. He was informed it was anticipated that his discharge would be under other than honorable conditions and that receipt of such discharge could deprive him of many or all of the benefits administered by the Veterans Administration and of his rights and benefits as a veteran under Federal and State laws.  He was offered the opportunity to submit a statement in his own behalf.

5.  By letter dated 2 October 1981, the applicant responded through an attorney. He stated that when he enlisted he was told he would be stationed in Europe, in accordance with his request.  However, the job he would be doing was specifically described to him as requiring an 8-hour workday.  When he got to Germany, the workday in fact was 24 hours – that is, 24 hours on and 24 hours off.  He would not have enlisted for that assignment had he been accurately informed of the working conditions.  He had a good service record prior to going AWOL.

6.  The applicant also stated that when he realized it was impossible for him to work under those working conditions, he went through the proper channels to request a transfer.  He made such a request about four times, but each time he was denied.  He believes the reasons for seeking a transfer were valid.  He was assigned to 24-hour work shifts for work that required a high-level of alertness.  Other Soldiers who could not take the pressure turned to drugs and thereby became unable to perform their share of the workload.  Soldiers who were taking drugs were assigned to the Community Drug and Alcohol Center and only had to work 8-hour shifts.  That increased the workload on others.  Some of the servicemen who were taking drugs would be under the influence of drugs during their work shift, thereby creating an additional burden on their co-workers. 

7.  The applicant further stated that after he returned to the States he was stabbed seriously.  He was in the hospital for several weeks.  While he was hospitalized, Fort Devens was notified of his whereabouts and military police came to the hospital.  He was told by the hospital administration that they would be coming back, so he did not think it was necessary for him to contact them himself.  After he was released from the hospital, he contacted Fort Devens and was told that if he had been told he would be contacted, he should wait for that to happen.  

8.  On 1 December 1981, the applicant was informed that the statement he submitted did not contain sufficient evidence to warrant the issuance of a different category of discharge and action had been taken to execute his discharge in absentia.  

9.  On 1 December 1981, the applicant was discharged, with a discharge under other than honorable conditions, under the provisions of chapter 14, Army Regulation 635-200, for misconduct – desertion.  He had completed 1 year and   8 days of creditable active service with 717 days of lost time prior to his normal expiration of term of service and 574 days after his normal expiration of term of service.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  
11.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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’s contentions have been carefully considered.  It is noted that his enlistment contract specifically informed him that only those promises written in the contract would be honored.  Nowhere in that contract was he promised an 8-hour workday.  

2.  The applicant mentioned drug use by fellow unit members in his contemporaneous statement, made in October 1981; however, he did not make the allegations that he currently makes; i.e., that he had turned in two Soldiers for drug use or that he was slipped LSD just prior to going on leave or that he was in fear of his life.  

3.  In the absence of evidence to the contrary, it is presumed that 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.  He has provided no evidence with his current application that supports his contentions.  Considering the length of his AWOL, there is an insufficient basis that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX___  __XX___  __XX____  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.




       _   __XX_____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080002477





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ABCMR Record of Proceedings (cont)                                         AR20080002477



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