IN THE CASE OF:	  

		BOARD DATE:	  	  12 February 2009

		DOCKET NUMBER:  AR20080018184 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states that he feels his discharge was unjust because it was issued to him without him being questioned.

3.  The applicant provides a supplemental letter in support of 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 enlisted in the Regular Army on 29 July 1977 for a period of four years.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 62J (General Construction Machine Operator).  He was assigned to Fort Devens, Massachusetts as an air compressor operator.

3.  The applicant was absent without leave (AWOL) on 6 December 1977.  He surrendered to civil authorities and returned to military authorities on 14 January 1978.

4.  The applicant's discharge packet is not available.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 8 February 1978 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service – in lieu of court-martial with the issuance of an UOTHC discharge.  He completed 5 months and 1 day of active military service with 39 days of lost time due to being AWOL.

5.  The applicant provided a statement in support of his application.  He stated, in effect, that he went AWOL due to severe drug problems at Fort Devens, Massachusetts at that time.  He made several attempts to talk to different personnel about this problem, but he was ignored.  He stated he never had a drug problem.  He thought if he went AWOL for a few days that someone would have to listen to him.  After a couple of days, he turned himself in.  He was picked up and sent to Fort Ord, California and was discharged.  He alleged that he was never asked why he went AWOL nor was he given the choice to stay in the service.  He was told that if he stayed out of trouble with the law, he could request a change in his discharge after a year.  He continued by stating that he has never been in any trouble at anytime over the last 30 years.  He has worked and raised a good family.  He alleged that his discharge was improper.  

6.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

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 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 UOTHC is normally considered appropriate.

8.  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 contends that his discharge was unjust because it was issued to him without him being questioned.  However, there is no evidence of record to substantiate the applicant's claim.

2.  The applicant's service record shows he was AWOL for a period of 39 days.

3.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed the issuance of an UOTHC discharge based on the applicant’s overall record of service and that the separation action was processed in accordance with the governing regulation.

4.  The applicant's statement was carefully reviewed.  However, he has provided no evidence other than his self-authored statement that the extenuating circumstances regarding drug problems at Fort Devens was the reason he committed the offense (AWOL) which led to his discharge.  He has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

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)                                         AR20080018184



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ABCMR Record of Proceedings (cont)                                         AR20080018184



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