IN THE CASE OF:	  

		BOARD DATE:	    27 May 2010

		DOCKET NUMBER:  AR20090018964 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge and restoration of his former pay grade.

2.  The applicant states that his discharge was unjust because he was not allowed to present evidence and witnesses to explain why he left the service.

   a.  He states he was stationed at Fort Gordon, GA, when he suffered a head injury after falling out of a window.  He adds that he lost consciousness and when he regained consciousness he simply walked-off base.

   b.  He states that he lived in South Central America and returned to America through Mexico approximately three years after his departure.  He adds that he simply walked onto Fort Bliss, TX, and turned himself in.
   
3.  The applicant provides no additional documentary evidence 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 for a period of 4 years on 23 May 1980.

3.  Upon completion of basic training at Fort Jackson, SC, the applicant was assigned to Company B, 1st Training Battalion, 2nd Signal Training Brigade, U.S. Army Signal Center, Fort Gordon, to attend advanced individual training.  He was advanced to private (PV2)/E-2 on 23 November 1980.

4.  The applicant departed absent without leave (AWOL) on 5 December 1980. He was dropped from the rolls (DFR) of the Army on 3 January 1981; apprehended by civil authorities in El Paso, TX, on 27 January 1983; and returned to military control on 27 January 1983.

5.  On 31 January 1983, charges were preferred against the applicant for being AWOL from 5 December 1980 to 27 January 1983.

6.  On 2 February 1983, the applicant consulted with legal counsel and voluntarily requested a discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

   a.  He was afforded the opportunity to consult with counsel.  He was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

   b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated with his initials that statements in his own behalf were not submitted with his request.

7.  A Statement of Option, dated 31 January 1983, shows the applicant indicated with his signature that he did not desire a separation medical examination.

8.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with a characterization of service of under other than honorable conditions.

9.  On 24 February 1983, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 8 March 1983 in accordance with Army Regulation 635-200, chapter 10, for the good of the service, with service characterized as under other than honorable conditions.  At the time he had completed 7 months and 23 days of net active service this period.
   
	a.  Item 4a (Grade, Rate or Rank) shows the entry "PV1"; item 4b (Pay Grade) shows "E-1"; and item 12 (Record of Service), block h (Effective Date of Pay Grade), shows "83 02 24" (i.e., 24 February 1983).

   b.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 5 December 1980 through 26 January 1983.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  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 under other than honorable conditions is normally considered appropriate.

   b.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  In pertinent part, it states when the separation authority determines a Soldier is to be discharged from the Service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he was not allowed to present evidence and witnesses to explain why he left the service; therefore, his discharge was unjust.  He also contends his former pay grade of E-2 should be restored.

2.  The applicant's contentions were carefully considered.

   a.  There is no evidence, and the applicant provides insufficient evidence, to show he suffered a head injury after falling out of a window that led to him going AWOL on 5 December 1980.  The applicant declined the option of undergoing a separation medical examination, which could have offered evidence in support of his contention.
   
   b.  Records show the applicant was afforded the opportunity to submit statements in his own behalf in evidence which would accompany his request for discharge.  The applicant declined to submit statements in evidence.
   
   c.  The regulatory guidance governing discharge for the good of the service in lieu of trial by court-martial states the applicant will be reduced to PV1/E-1 prior to discharge.  Records show the applicant's pay grade at the time of his separation was E-1.  There is no evidence, and the applicant provides insufficient evidence, to show his former pay grade of E-2 should have been restored prior to his discharge.
   
   d.  In view of all of the foregoing, there is no basis for granting the applicant's requested relief.

3.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-
martial was voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

4.  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)                                         AR20090018964



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ABCMR Record of Proceedings (cont)                                         AR20090018964



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