IN THE CASE OF:	  

		BOARD DATE:	       13 August 2008

		DOCKET NUMBER:  AR20080006631 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states after joining the Army he was assigned in Germany.  He had to go home on emergency leave because his youngest sister was shot in the head by her husband.  It was not known if she would live or die.  She stayed in the hospital for months clinging to life.  His sister recovered but was paralyzed on one side and the burden fell on the family because she had three children.  This life-changing event was so devastating for him that he had no reason to move on with his life.  He was so distraught over the incident that he did not return to the military until 3 years later.  The applicant states that he has finally managed to take control of his guilt for not being around to protect his sister.  As a result of making changes in his life for the better, he apologizes for his actions.

3.  The applicant provides a form from the Lee Memorial Health System, dated 24 January 2008; a letter of support from the Mount Olive C.M.E. Church, Hull, Florida, dated 28 January 2008; and a letter of support from a fellow associate, dated 17 January 2008.

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 27 June 1978 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 13B (Cannon Crewman).

3.  A DD Form 458 (Charge Sheet), dated 20 July 1983, shows charges were preferred against the applicant for being absent without leave (AWOL) for the period 16 July 1980 through 19 July 1983.

4.  On 22 July 1983, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He waived the right to provide statements on his own behalf.

5.  On 26 August 1983, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.  On 3 October 1983, the applicant was discharged with a characterization of service of under other than honorable conditions.  The applicant had completed a total of 2 years, 3 months, and 4 days of creditable active service with 1098 days of lost time due to being AWOL.

6.  The applicant provided two letters of support from fellow associates.  The authors both stated that they have known the applicant for more than 40 years.  They stated that the applicant is kind, caring, and a reliable person.  He will go out of his way to help others in need in his community.


7.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

8.  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.

9.  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.  There is no evidence and the applicant has not provided evidence that shows he sought assistance from his chain of command, chaplain, or community support service before his instance of AWOL due to his family problem.  It is unfortunate that the applicant's sister faced difficulties at that time; however, the applicant was not authorized an excused absence.  Therefore, there is no basis for this argument.

2.  The applicant's good post-service conduct since his discharge is acknowledged.  However, good post-service conduct alone is not a basis for upgrading a discharge and, upon review, the applicant's good post-service conduct is not sufficient to mitigate his indiscipline in the Regular Army.

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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.



      ___________xxxxx_________
                  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)                                         AR20080006631





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ABCMR Record of Proceedings (cont)                                         AR20080006631



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