IN THE CASE OF:	  

		BOARD DATE:	       7 MAY 2009

		DOCKET NUMBER:  AR20080020053 


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, in effect, that he had just returned from Korea at the time of his discharge.  He had been married for less than four months when he was sent to Korea.  He made several attempts to delay or decline his assignment, but he was denied.  He went [to Korea] and served his time honorably.  He alleges that he returned home to a "mess" which included a problem with his wife and a threat from a former roommate in Korea.  He contacted the duty station at Fort Bragg, NC and advised them of the situation.  He also informed them that he was not coming back.  He was dropped from the rolls and he was listed as being absent without leave (AWOL).  He turned himself in at Fort Sill, OK and he opted to get out of the Army to attempt to fix his marriage.  

3.  The applicant provides no additional documents 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 1 November 1995.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 45B (small arms repairer).  His highest grade held was specialist, E-4.  He arrived in Korea on 2 July 1997.

3.  He went into an AWOL status on 31 July 1998 and returned to military control on 2 December 1998 at Fort Sill, OK.  

4.  The applicant's discharge packet is not available.  However, his DD Form 214 (Certificate of Release from Active Duty) shows he was discharged on 7 May 1999 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 3 years, 2 months, and 3 days of active military service with 124 days of lost time due to being AWOL.

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

6.  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 UOTHC discharge is normally considered appropriate.

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.  



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's statements were carefully considered.  However, there is no evidence of record to substantiate the applicant's claims.

2.  The applicant's service record shows he was AWOL for a period of 124 days.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This lost time also renders his service unsatisfactory.  Therefore, he is not entitled to either a general discharge or an honorable discharge.

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 has provided no evidence other than his self-authored statement that the circumstances regarding his personal problems were the reasons he committed the AWOL offense which led to his discharge.  Even if so, he had the responsibility to resolve his personal problems through other means to include seeking help from his chain of command.  Therefore, 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.




      _______ _ 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)                                         AR20080020053



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ABCMR Record of Proceedings (cont)                                         AR20080020053



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