IN THE CASE OF:	  

		BOARD DATE:	        03 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080007808 


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 a general discharge. 

2.  The applicant essentially states that his character of service was in good standing with the exception of the irresponsible act at the time of his absence without leave (AWOL).  He also states that he has lived with his poor judgment for 23 years, and would like to have the Army Board for Correction of Military Records (ABCMR) consider his service in full, and not based on a single irresponsible act.  He further states, in effect, that at the time of his AWOL, he was directed to make a permanent change of station (PCS) to Germany, but that he was married at the time and his wife would not go, and that the result would have been a divorce.  He continued by stating that he requested a review of his situation with his battery commander.  Additionally, he states that he would have had to extend his enlistment an additional 4 months to complete his overseas assignment, and that there was no option to change his orders.  He states that he felt at the time that the Army had almost 3 years to send him to Germany, but declined to do so, and also felt that the Army had broken their contract with him, and due to his immaturity at the time, he chose not to comply with his PCS orders.  He reiterates that his youth and immaturity took the place of better judgment at the time, but that he accepted responsibility for his actions many years ago.  He also states that he would like the opportunity to appear and discuss his case before the ABCMR, and is only looking to upgrade his discharge to a general discharge as he fully understands that he did not complete his commitment.

3.  The applicant provides no additional evidence in support of this application.
 
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 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's military records show that he enlisted in the Regular Army on 13 July 1982.  He completed initial entry training at Fort Sill, Oklahoma and was awarded military occupational specialty 13B (Cannon Crewman).  He then attended airborne training at Fort Benning, Georgia, but failed to complete this training, and was reassigned to Fort Knox, Kentucky in December 1982.

3.  On 14 July 1983, after being screened for a nuclear duty position, the applicant was found to be unsuitable and disqualified for such duty.  His commanding officer essentially indicated that the applicant's status at the time of his disqualification was that he was financially irresponsible, lacked a sense of responsibility, and had a poor attitude and lack of motivation when he was a member of the battery special weapons team. 

4.  Headquarters, US Army Armor Center, Fort Knox Orders 208-14, dated
25 October 1984, directed the applicant to proceed on PCS move from Fort Knox to Germany with an availability date of 6 December 1984.  He signed out of Fort Knox on 6 November 1984; however, on 9 December 1984, he was placed in an assigned-not-joined to AWOL status.  On 8 January 1985, he was dropped from the rolls of the Army and classified as a deserter.  He remained in this status until he was returned to military control on 14 April 1985.

5.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in the available records, his military records do contain a properly constituted DD Form 214.  This DD Form 214 shows that the applicant was discharged on 26 July 1985 under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 
635-200 (Enlisted Personnel), and was issued a discharge under other than honorable conditions.  
6.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  The applicant essentially stated that his character of service was in good standing with the exception of the irresponsible act at the time of his AWOL.  He also stated that he has lived with his poor judgment for 23 years, and would like to have the ABCMR consider his service in full, and not based on a single irresponsible act.  He further stated, in effect, that at the time of his AWOL, he was directed to make a PCS to Germany, but that he was married at the time and his wife would not go, and that the result would have been a divorce.  He continued by stating that he requested a review of his situation with his battery commander.  Additionally, he stated that he would have had to extend his enlistment an additional 4 months to complete his overseas assignment, and that there was no option to change his orders.  He stated that he felt at the time that the Army had almost 3 years to send him to Germany, but declined to do so, and also felt that the Army had broken their contract with him, and due to his immaturity at the time, he chose not to comply with his PCS orders.  He reiterated that his youth and immaturity took the place of better judgment at the time, but that he accepted responsibility for his actions many years ago.  He also stated that he would like the opportunity to appear and discuss his case before the ABCMR, and is only looking to upgrade his discharge to a general discharge as he fully understands that he did not complete his commitment. 

8.  The applicant's enlistment record shows that he was single at the time of his entry onto active duty.  His DD Form 93 (Record of Emergency Data), which the applicant authenticated with his signature of 17 April 1985, also shows that he was single. 

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 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.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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.
11.  Army Regulation 601-280 (Army Reenlistment Program), in effect at the time, provided guidance on the processing of Soldiers who are required and refuse to take action to meet length-of-service requirements.  It provided that individuals who indicated a desire to refuse to take action to meet length of service requirements would be initially counseled at the military personnel office (MILPO) on the effects of their refusal.  A statement to the effect that the individual was counseled and refused to comply with orders would be prepared at the MILPO and forwarded to the Soldier's commander for signature.  The statement would then be authenticated by the counseling officer.  The authenticated statement would form the basis for appropriate deletion action [from assignment instructions].  

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  This regulation also states that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to a general discharge.

2.  The fact that the applicant asked to be allowed to make a personal appearance before the Board in Washington, D.C. was considered.  However, as the applicant clearly stated his case and contentions, it was determined that holding a hearing would serve no further purpose.

3.  The applicant's contention that he was married at the time he was to PCS to Germany was considered, but could not be corroborated by the evidence of record.  The applicant's military records do not show that he was married at any time during his military service.

4.  The applicant's contention that he would have had to extend his enlistment an additional 4 months to complete his overseas assignment was also considered, but not found to have any merit.  Historically and at the time of the applicant's pending assignment to Germany, first-term Soldiers, which the applicant was at the time, who did not have sufficient service remaining before their scheduled expiration of term of service could elect to not meet a service remaining 
requirement for an overseas tour by completing a statement.  This statement was subsequently replaced by the DA Form 4991-R (Declination of Continued Service Statement), which is still used today.  

5.  Although the facts and circumstances pertaining to the applicant’s discharge are not in his military records, it is clear that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

6.  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 this requirement.

7.  The applicant's entire record of service was taken into consideration.  However, his misconduct so far outweighed his record of military service that relief cannot be justified in this case.  

8.  The applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080007808



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ABCMR Record of Proceedings (cont)                                         AR20080007808



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