IN THE CASE OF:	     

		BOARD DATE:	         17 September 2008

		DOCKET NUMBER:  AR20080009484 


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 an upgrade of his discharge to [general], under honorable conditions.

2.  The applicant states, in effect, that he deserted his unit [based in Fort Eustis, Virginia] and returned home to Long Island, New York so he could take care of his 13-year old brother and his comatose mother who had been diagnosed with a terminal cerebral hemorrhage.  He continues that his sister had moved out of his mother's home after getting married and his oldest brother was also in the Army.
The applicant states that he was only 22 years old and faced with a crisis which he was not prepared for.  The applicant admits that he made a mistake by going absent without leave (AWOL) and eventually returned himself to military control.  The applicant states that the Army was willing to give him a chance to remain on active duty, but it would require him to be reassigned to Fort Ord, California, which he felt was too far from his family.  The applicant continues that he decided to accept a discharge under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial) [of Army Regulation 635-200 (Personnel Separations)] in lieu of complying with his reassignment orders.  He concludes that he had no idea that his decision was going to ruin his life and that if he had an opportunity to do it all over again, he would have made a career of the Army.

3.  The applicant provides a two-page self-authored letter 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 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 record shows he enlisted in the Army at the age of 22, entered active duty on 29 October 1974, and was discharged on 27 October 1976.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty (MOS) 61C (Water Craft Engineer).  The highest rank the applicant attained while serving on active duty was private (PV2)/pay grade E-2.  However, at the time of his separation he held the rank of private (PVT)/pay grade E-1.  His only permanent party duty station was Fort Eustis, Virginia.

3.  The complete facts and circumstances of the applicant's separation are not available for review in the applicant's record.  However, there is sufficient documentation to render a fair and impartial decision in this case.

4.  DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 5 September 1975, shows the applicant accepted nonjudicial punishment for absenting himself from his unit from 6 August 1975 through 2 September 1975.

5.  DA Form 4187 (Personnel Action) dated 2 July 1976, shows the applicant was dropped from the rolls of the Army after being AWOL during the period 1 June 1976 through 30 June 1976.

6.  DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 30 June 1976, was prepared and distributed to inform military and civilian authorities that the applicant had been dropped from the rolls of the Army for being AWOL during the period 1 June 1976 through 30 June 1976.


7.  United States Department of Justice, Federal Bureau of Investigation letter, dated 5 October 1976, informed the Department of the Army that the applicant had voluntarily surrendered and was confined in the hands of civil authorities pending return to military control.

8.  DA Form 4187, dated 14 October 1976, shows the applicant had returned to military control on 5 October 1976.

9.  Headquarters, United States Army Training Center and Fort Dix, Fort Dix, New Jersey Orders 114-76, dated 22 October 1976, reduced the applicant in grade from PV2/E-2 to PVT/E-1 effective 19 October 1976.  This order also reassigned the applicant to the United States Army Transfer Point for separation processing and directed that he be issued an Undesirable Discharge Certificate.

10.  Headquarters, United States Army Training Center and Fort Dix, Fort Dix, New Jersey Orders 119-210, dated 27 October 1976, discharged the applicant from the Regular Army effective 19 October 1976.

11.  Headquarters, United States Army Training Center and Fort Dix, Fort Dix, New Jersey letter, dated 27 October 1976, informed the applicant that the reason and narrative description of the regulatory/statutory authority for his separation from active duty on 27 October 1976 was conduct triable by court-martial.

12.  The applicant's DD Form 214 shows that he was discharged under the provisions of Chapter 10 of Army Regulation 635-200.  This form also shows that he received an under other than honorable conditions characterization of service and he was issued a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 also shows the applicant had a total of 148 days lost time due to AWOL during the periods from 6 August 1975 through 1 September 1975 and from  1 June 1976 through 4 October 1976.  He was also credited with 19 days of excess leave from 8 October 1976 through 26 October 1976.

13.  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 trial by court-martial.  At the time an undesirable discharge was normally considered appropriate. 


14.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded based upon the fact that he made a mistake was carefully considered and determined to be without merit.

2.  The record shows that the applicant was AWOL on two occasions.  On the first occasion, he was absent for a period of 22 days.  On the second occasion, he deserted his unit for a period of 146 days prior to returning to military control.  The record also shows that he was dropped from the rolls of the Army prior to returning to military control.

3.  In spite of his indiscipline, the Army was willing to allow the applicant to remain on active duty, but he voluntarily elected to accept a discharge under the provisions of Chapter 10 of Army Regulation 635-200 in lieu of complying with his reassignment orders.

4.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All 
requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge reflects his overall record of military service.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

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

___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)                                         AR20080009484



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ABCMR Record of Proceedings (cont)                                         AR20080009484



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