IN THE CASE OF:	

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080006726 


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 under other than honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that his discharge is unjust because his actions were necessitated by the Army’s inability to rectify his pay and allowances in a timely manner.  He contends that he maintained contact with his chain of command during his authorized leave period and they understood that he needed to provide basic subsistence support to his family.  He states that his pay records were mismanaged by the Army and ultimately ended up placing undue hardship on his family and himself.  

3.  The applicant states that following his transfer to Fort Stewart he encountered a pay problem.  He claims that he notified his chain of command and that he was sent to finance to straighten the pay issue out.  He indicates that finance informed him that it would be fixed in a matter of time and he was paid base pay only; however, almost a year later the pay issue remained unresolved.  He points out that he could not support his family on base pay without allowances so he sent his wife and child back to Maine.  He claims that he was getting kicked out of his off-base apartment so he went on authorized leave and found a job that was paying more money than the Army.  He states that he called his chain of command and notified them of his actions and he also provided a contact address and telephone number where he could be reached.  When his chain of command contacted him to determine when he was returning from his leave, he told them he would return if they corrected his long standing pay issues.  At that point he was reported as being absent without leave (AWOL).  He points out that his conduct while employed by the Army was exemplary and that he would have continued his career in the Army had his chain of command adequately addressed the pay issues in a timely manner.    

4.  The applicant provides a letter, dated 19 December 2007, from the Defense Finance and Accounting Service; excerpts from evaluation reports; one page of his DA Form 2-1 (Personnel Qualification Record); orders for the Army Achievement Medal; a DD Form 4/4 (Enlistment/Reenlistment Contract); certificates of achievement and appreciation; a training certificate; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); and a letter, dated 4 April 2008, from a 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 on 7 January 1980 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty 19E (armor crewman).  He attained the rank of specialist five on 5 March 1982.  He arrived at Fort Stewart, Georgia on 25 April 1983.

3.  The applicant went AWOL on 12 March 1984 and returned to military control on 31 May 1984.  On 1 June 1984, charges were preferred against the applicant for the AWOL period.  

4.  On 1 June 1984, the applicant was interviewed.  He stated that he went AWOL from Fort Stewart because he was not receiving the money that he needed to keep up his family (because of his bills).  He indicated that he did not take any action to solve the problem before going AWOL.  The applicant’s first sergeant was contacted and he reported that the applicant went on emergency 
leave and never returned.  No charges were pending, the command did not want the applicant back, and the command was working on the applicant’s financial problem but he left before there were any results.  

5.  On 1 June 1984, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs); that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.  

6.  On 17 June 1984, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 10 July 1984 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial.  He had served 
4 years, 3 months, and 15 days of active service with 79 days of lost time due to AWOL.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.



10.  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.  

11.  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 regarding his pay issues were noted.  However, according to the applicant’s first sergeant, his command was working on the applicant’s financial problems but he left before there were any results.  In his interview, the applicant mentions that he did not take any action to solve the problem before going AWOL.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so. 

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  Since the applicant’s record of service included 79 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or honorable discharge.







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)                                         AR20080006726



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ABCMR Record of Proceedings (cont)                                         AR20080006726



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