BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100012952 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states, in effect, that he deserves an honorable discharge because he served honorably for 3 years and he did not reenlist contrary to what was represented.  He goes on to state that he said he was going to reenlist but he never signed the forms and contends that the signatures on any contracts were not his.  He also states that it is an injustice to say that he was absent without leave (AWOL) or a deserter because he did not reenlist. 

3.  The applicant provides:

* A copy of a photograph of a truck
* A copy of his safety award
* A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A copy of transfer orders
* A copy of a page of his 30 November 1979 enlistment contract
* A partial copy of his evaluation report
* A copy of examination results
* A copy of a training certificate




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 was born on 4 September 1958 and enlisted in the Regular Army in Sacramento, California on 12 January 1977 for a period of 3 years, training as a motor transport operator and assignment to Europe.  He was transferred to Fort Dix, New Jersey to undergo his training.

3.  On 1 June 1977, nonjudicial punishment was imposed against him for being drunk and disorderly and indecent exposure.

4.  On 19 June 1977, he was transferred to Kaiserslautern, Germany for assignment to a transportation company as a heavy vehicle driver.  He was advanced to the pay grade of E-4 on 1 April 1978.

5.  On 30 November 1979, he reenlisted for a period of 3 years and assignment to the Presidio of San Francisco (PSF), California.

6.  He departed Germany on 7 January 1980 and reported to his new assignment on 25 February 1980.  However, he went AWOL on 27 February 1980 and remained absent in a desertion status until he was apprehended by civil authorities on 15 February 1982 and returned to military control.

7.  On 16 March 1982, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14 for misconduct due to being AWOL for more than 1 year.

8.  On 22 March 1982, after consulting with defense counsel, the applicant waived all of his rights and elected to submit a statement in his own behalf in which he asserted that he believed he had been pressured into reenlisting and that when he arrived at the PSF he explained to the commander that he did not want to reenlist and he wanted out of his contract.  He also stated that the only reason he reenlisted was to avoid being extended in Germany until his expiration of term of service (ETS).  He went on to state that his commander told him once he signed the contract there was nothing that could be done.  He was referred to the Judge Advocate General’s (JAG) office and he was told the same thing.

9.  The appropriate authority (a major general) approved the recommendation for discharge on 23 March 1982 and directed that the applicant be discharged under other than honorable conditions.

10.  Accordingly, he was discharged under other than honorable conditions on 12 July 1982 under the provisions of Army Regulation 635-200, chapter 14 due to misconduct-AWOL.  He had served 3 years, 6 months, and 18 days of total active service and he had 718 days of lost time due to being AWOL.

11.  There is no evidence in the available records to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, AWOL, involvement in frequent incidents of a discreditable nature with civil and military authorities, and conviction by civil authorities.  A discharge under other than honorable conditions is normally considered appropriate.  

13.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the narrative reason and separation code are appropriate under the circumstances of his case.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his misconduct and his extensive absence.  The evidence of record clearly shows he was informed that he could not void his reenlistment contract and he chose to immediately go AWOL after being so informed.

4.  The applicant’s contention that he did not sign the reenlistment contract has been noted and found to lack merit.  The evidence of record clearly show the applicant admitted that he reenlisted to avoid being extended in Germany to his ETS date and once he departed Germany and arrived at his new duty station, he attempted to have his contract voided, despite the fact that the Army had honored his contract by giving him his station of choice.  Unfortunately, the applicant had no valid basis for voiding his contract and was told such by his commander and the JAG representative.

5.  Regardless of the applicant’s motivations at the time, the government fulfilled all of its obligations to the applicant at the time; however, the applicant did not honor his contract and was properly discharged for his misconduct.

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)                                         AR20100012952



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ABCMR Record of Proceedings (cont)                                         AR20100012952



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