IN THE CASE OF:	  

	BOARD DATE:	  3 June 2008

	DOCKET NUMBER:  AR20080004239 


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 that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

2.  The applicant states he feels that after all of these years of not being able to use his Department of Veterans Affairs benefits he would like to pursue them now.  He served his country and made some mistakes along the way.  He does not feel that those mistakes should follow him the rest of his life.

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional 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 enlisted in the Regular Army on 11 March 1980.  He completed basic training and advanced individual training and was awarded military occupational specialty 16R (Air Defense Short Range Missile Crewman).

3.  On 29 April 1981, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for wrongfully having in his possession some amount of marijuana.

4.  On 25 January 1982, the applicant failed to return from ordinary leave en route to being assigned to Germany and was reported absent without leave (AWOL).  He turned himself in on 14 February 1984.

5.  A Commander’s Information/Summary Sheet, undated, indicated the applicant stated his grandfather died while he was en route to Germany so he went AWOL to be with his mother, who was in a bad way.  He stayed gone because he was afraid of what might happen to him.

6.  On 22 February 1984, the commander of the U. S. Army Personnel Control Facility, Fort Carson, CO, notified the applicant he was recommending him for discharge under the provisions of Army Regulation 635-200, chapter 14 for misconduct – commission of a serious offense, AWOL in excess of one year.  

7.  On 22 February 1984, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He waived his right to consideration of his case by a board of officers and elected not to submit a statement on his behalf.

8.  On 23 February 1984, the commander of the U. S. Army Personnel Control Facility formally recommended the applicant be discharged under the provisions of Army Regulation 635-200 for AWOL in excess of one year.  

9.  On 27 February 1984, the applicant underwent a mental status evaluation.  He was found to be mentally responsible and to have the mental capability to understand and participate in separation proceedings.  He was psychiatrically cleared for any action deemed appropriate by his command.  

10.  The appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

11.  On 14 March 1984, the applicant was discharged, with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, for misconduct – commission of a serious offense.  He had completed 1 year,   11 months, and 16 days of creditable active service and had 749 days of lost time.

12.  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 UOTHC is normally appropriate for a Soldier discharged under this chapter.  

13.  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.  

14.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  There is no evidence of record and the applicant provided none to show he made an effort to contact his chain of command or the chaplain’s office at his losing unit to obtain assistance in resolving the situation caused by the death of his grandfather.  Considering the applicant’s one Article 15 and his lengthy (more than 2 years) AWOL, the characterization of his discharge as UOTHC was and still is appropriate.
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.



	__________xxxx_________
      	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)                                         AR20080004239



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ABCMR Record of Proceedings (cont)                                         AR20080004239



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