IN THE CASE OF:	  

	BOARD DATE:	  3 June 2008

	DOCKET NUMBER:  AR20080005188 


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 correction of his military records to show that he was retired for length of service.

2.  The applicant states he was not aware of his eligibility for retirement.  

3.  The applicant provides copies of his Certificates of Release or Discharge from Active Duty (DD Form 214), orders for discharge, orders for retirement, initial enlistment record, and his Personnel Qualification Record Part II (DA Form 2-1).

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 31 July 1963, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  He served through a series of enlistments and a variety of assignments both in the United States and overseas. 

3.  The applicant served a 12 month tour of duty in the Republic of Vietnam; a 
24 month tour of duty in Hawaii; and an extended tour of duty in the Federal Republic of Germany of 68 months.

4.  On 11 July 1975, the applicant was promoted to sergeant first class, pay grade E-7.

5.  On 12 January 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to obey a lawful general regulation by not providing his wife a support payment during July and August 1982 and for wrongful appropriation of United States currency in the amount of $2,500.00.  The punishment included a forfeiture of $500.00 pay per month for 2 months and a letter of reprimand.  The applicant did not appeal the punishment.

6.  Item 4 (Assignment considerations) of the applicant’s DA Form 2-1 shows that on 15 February 1984 the applicant applied for retirement.  Orders 46-8, United States Army Training Center Engineer and Fort Leonard Wood, Missouri, dated 15 February 1984, directed the applicant’s release from active duty effective 
31 March 1984 and placement on the Retired List effective 1 April 1984.  

7.  On 12 March 1984 the applicant was absent without leave (AWOL).  He returned to military control on 16 March 1984 for a couple of hours and then was AWOL again.

8.  On 19 August 1994, the applicant surrendered himself to military authorities at Fort Jackson, South Carolina.  He had been AWOL for more than 10 years.  The applicant signed a Memorandum for the Commander, Personnel Control Facility, acknowledging that he had been AWOL during the period from 16 March 1984 until 19 August 1994.  He made this admission for the purpose of receiving a discharge under other than honorable conditions.

9.  On 24 August 1994, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 16 March 1984 to on or about 19 August 1994.



10.  On 24 August 1994, 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

11.  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 to 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.   

12.  On 30 September 1994, the separation authority approved the applicant’s request for discharge and directed that he be issued a general discharge under honorable conditions.  On 25 October 1994, the applicant was discharged accordingly.  He had completed a total of 20 years, 9 months and 18 days of creditable active military service and had accrued 10 years, 5 months, and 
2 days of time lost due to AWOL.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

14.  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.

15.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, AWOL of more than 30 days.




16.  Army Regulation 635-200, chapter 12 sets forth the policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers who are retiring in their enlisted status.  Soldiers of the Regular Army must be on active duty when they retire.  A Soldier who has completed 20 but less than 30 years of active Federal service in the United States Armed Forces may be retired at his or her request.    Soldiers who have completed 20 but less than 30 years of AFS and who have completed all required service obligations are eligible, but not entitled, to retire upon request.   Soldiers who are under suspension of favorable personnel action are not precluded from submitting applications for retirement.  Requests for retirement will be considered on a case-by-case basis by the local retirement approval authority. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not know he was eligible for retirement.  However, the evidence of record clearly shows that he had applied for retirement on 15 February 1984. 

2.  The evidence of record clearly shows that the applicant had been approved for a length of service retirement effective 1 April 1984.  However, he forfeited this retirement by going AWOL 2 weeks earlier and remaining AWOL for more than 10 years.

3.  Upon the applicant’s return to military control, he admitted to being AWOL and requested a discharge.  However, he gave no explanation for his AWOL.  Furthermore, there is no indication in the record showing that he wanted his retirement restored.

4.  The applicant has not provided in his application any explanation for his AWOL.  He has not provided any argument other than to say that he did not know he was eligible for a retirement.    

5.  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.  The separation authority directed a general discharge under honorable conditions.

6.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

7.  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.

8.  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

___X____  ___X____  ___X ___  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.




        _______X_ _   _______   ___
       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)                                         AR20080005188



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ABCMR Record of Proceedings (cont)                                         AR20080005188



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