IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100008853 


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.

2.  The applicant states:

* the Army sent him to Eniwetok Island in the South Pacific
* he knew the islands were contaminated with radiation
* he knew two servicemen who had been on the island and died from radiation poisoning
* he had been diagnosed with chronic bronchitis and he believed his life would be in danger from breathing the radiation
* he "Rift" that came down requested an E-7 in a 51H (construction engineer supervisor) military occupational specialty (MOS)
* he was an E-6 in a 62N (construction foreman) MOS and he had no knowledge of the job

3.  The applicant provides an undated a copy of a Department of Veterans Affairs (VA) letter notifying him of the decision made on his claim.

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.  After completing 9 years, 5 months, and 6 days of total prior active service in the Regular Army (RA), the applicant enlisted in the RA for 3 years on 1 April 1977, in the pay grade of E-5.

3.  He was promoted to the pay grade of E-6 on 12 June 1978, and he was awarded MOS 62N, effective 1 July 78.

4.  The applicant's records show he was assigned to Fort Carson, CO when he went absent without leave (AWOL) on 21 February 1979.  He remained absent in desertion until he was apprehended by military authorities and returned to military control on 10 March 1981.

5.  The facts and circumstances pertaining to the applicant's discharge are not contained in the available records.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 10 June 1981 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct, and issued an under other than honorable conditions discharge.  He had completed 2 years, 1 month, and
21 days of net active service this period and he had 2 years and 17 days of time lost due to AWOL.

6.  The available evidence does not show the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is 

impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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

9.  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 contentions have been considered.  However, they are not sufficiently mitigating to warrant relief in this case.

2.  The type of discharge directed was appropriate considering all of the available facts of his case.

3.  The applicant went AWOL and he was absent in desertion for over 2 years before he was apprehended by military authority and returned to military control.  Considering the nature of his offense, the character of his service appropriately reflects his record of service during the period covered by the DD Form 214 for the period ending 10 June 1981.

4.  There is no evidence in the available record that shows he contacted his chain of command and expressed his desire not to be sent to Eniwetok Island due to a fear of becoming ill.  He records only show that he went AWOL.  In the absence of evidence to the contrary, it must be presumed that the action taken by the Army in his case was correct.

5.  In view of the foregoing there is no basis for granting the requested relief.

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)                                         AR20100008853



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)