IN THE CASE OF:	  

		BOARD DATE:	        24 JULY 2008

		DOCKET NUMBER:  AR20080007878 


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 be upgraded to honorable.

2.  The applicant states that at the time, he went absent without leave (AWOL) his father had just died and he was in Germany.  He was 21 years of age and he allowed alcohol to become comfort for his grief.  He goes on to state that his inexperience at life and immaturity caused him his problems. 

3.  The applicant provides no additional documents with his 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 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’s records, though somewhat incomplete, was born on 17 May 1958 and enlisted with a moral waiver in the Regular Army in Denver, Colorado on 2 January 1979, for a period of 3 years, training as a radio operator and assignment to Europe.  He completed his training and was transferred to Germany in April 1979 for assignment to a signal company.

3.  On 4 December 1979 he was granted a 30-day emergency leave due to the death of his step-father.

4.  On 19 January 1981, a letter was forwarded to the applicant’s commander with Court-Martial Charges, endorsements, and the case file pertaining to the applicant.  A Military Police Report was prepared on 4 February 1981 and the commander prepared charges against the applicant consisting of five charges for attempting to steal currency from a civilian in Stuttgart, Germany; for stealing currency from a civilian in Stuttgart, Germany; for failure to report an accident in which he was involved in a military vehicle; for operating a military vehicle while drunk; for the wrongful appropriation of a military vehicle; for wrongfully leaving the scene of an accident without making his identity known.   

5.  The applicant was admitted to the hospital for alcohol treatment and was released from the hospital on 9 April 1981 with instruction to return to his unit.  Instead, he went absent without leave (AWOL) and remained absent in desertion until he was returned to military control at Fort Dix, New Jersey on 19 May 1984. Charges were preferred against the applicant on 30 May 1984 for being AWOL from 9 April 1981 to 19 May 1984.  The maximum punishment he could have received if convicted by a general court-martial was a Dishonorable Discharge, confinement for 1 year and 6 months, a total forfeiture of all pay and allowances, and reduction to the pay grade of E-1.    

6.  The disposition of the previous charges against the applicant is not contained in the available records.  However, at the time he was returned to military control, the applicant stated that he went AWOL from Germany because he could not take the pressure and mental strain of the Army after his father’s death, the commander and first sergeant would not hear any of his problems, his sister had been in a car accident, and his brother was possibly going to prison.  He also indicated that he did not want any help from the military in regards to his drinking.

7.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.  

8.  On 17 June 1984, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.

9.  The appropriate authority (a major general) approved his request on 17 June 1984 and directed that he be discharged under other than honorable conditions.

10.  Accordingly, on 10 July 1984 he was discharged under other than honorable conditions while on excess leave, under the provisions of Army Regulation
635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years,
4 months, and 29 days of active service and had approximately 1,134 days of lost time due to AWOL.   

11.  A review of the available records fail to show that the applicant ever sought the assistance of his chain of command or that he ever surfaced his alleged problems to his chain of command.  There is no evidence that he ever applied for a hardship discharge or compassionate reassignment as well.

13.  There is no indication in the available records to show that he ever applied to the Army Discharge review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  The evidence of record also shows that on 6 September 1988, the applicant authorized the 1st Judicial District Probation Department in Golden, Colorado, authorization to obtain information regarding his military service for the purpose of a pre-sentencing hearing to be held on 28 October 1988.  


15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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 courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and possible confinement.  In doing so he admitted guilt to the charges against him.  

4.  The applicant’s contentions and supporting statements are noted; however, they are sufficiently mitigating to warrant relief under the circumstances.  While he may have been experiencing personal problems at the time, there is no evidence to show that he made any attempt to seek assistance from his chain of command to resolve his problems or at least offer a viable explanation to explain his absence and misconduct. 

5.  The evidence of record suggests that the applicant actually went AWOL to avoid being held accountable for the litany of charges that were preferred against him while he was in Germany, which given the seriousness of the charges, in all likelihood would have also been resolved at trial by court-martial.  



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  

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)                                         AR20080007878



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ABCMR Record of Proceedings (cont)                                         AR20080007878



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