BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130002660 


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 to an honorable discharge.

2.  The applicant states he was on medical leave from Fort Gordon, GA.  He went home to Chicago, IL in 1978 while waiting for the final results from Fort Gordon's physician evaluation for combat fitness.  In the meantime his personal items were shipped to Stuttgart, Germany.  While in this status he was told to pick up his pay at Fort Sheridan, IL, while his fitness status was being determined.  When he went to pick up his third check he was informed the system did not show him on medical leave, but that he was in an absent without leave (AWOL) status.  He was arrested the next day and sent to Fort Knox, KY.

3.  He stated The Adjutant General acknowledged there had been a mix up according to his review of the records and evidence.  The Adjutant General admitted it was due to a system error and communication breakdown, apologized on behalf of the Army, and asked him to reconsider the discharge based on the value of his training and his security clearance.  The applicant states he was so distraught, caused by the Army administration, that he just wanted to go home even though his belongings had already been shipped overseas.

4.  He states that between 1980 and 2005, because of the nature of his discharge, he has not been able to get employment, housing, or military benefits due to this administrative error and judicial decision.

5.  When he was seeking help from the Department of Veterans Affairs (VA) he found their system showed his date of birth (DOB) with the year 1955 instead of 1952 and that he was deceased.  He states it turned out an individual had stolen his identity and data, bought a home, damaged his credit with other applications, then died.  He states the Social Security Administration was informed but they refused to issue a new number so they instead authorized a name change for his surname based on his mother's maiden name.

6.  The applicant provides no additional 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.  On 29 September 1978, he enlisted in the Regular Army.  He completed basic combat and advanced individual training (BCT/AIT) and he was awarded military occupational specialty 32D (Station Technical Controller).  His DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States) shows his DOB with the year 1952.

3.  On 26 March 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 7 March to on or about 8 March 1979.

4.  He was ordered to report for out processing on 18 July 1979 for assignment to the U.S. Army Replacement Detachment, Germany.

5.  On 13 December 1979, court-martial charges were preferred against the applicant for:

* being AWOL from on or about 3 August 1979 to on or about 29 August 1979
* being AWOL from on or about 30 August 1979 to on or about 4 December 1979

6.  On 13 December 1979, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

7.  On 14 December 1979, the applicant voluntarily requested 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.  He acknowledged he understood the offenses he was charged with and he was:

* making the request of his own free will and without coercion
* guilty of the offense for which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate

8.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he received a discharge under other than honorable conditions and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all VA benefits

9.  The applicant submitted a statement in his own behalf.  He stated his reason for requesting a chapter 10 discharge was the constant stress of military life and his being the only support for his mother who had a broken foot.  The pressure of abdominal pain, intestinal tract problems, and constant sleeplessness had diverted his attention and interfered with his military duties.  To remain in (the military) would (unreadable) further the situation.

10.  On 9 January 1980, the appropriate authority approved the applicant's request for discharge for the good of the service, directed the applicant be reduced to private (PV1)/E-1, and discharged under other than honorable conditions.

11.  On 20 February 1980, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 1 year and 21 days of creditable active service that was characterized as under other than honorable conditions.  He also accrued 121 days of time lost.

12.  His complete service medical records were not available for review.  His separation physical does not show any physical or mental condition that could have resulted in his being evaluated for fitness for duty.

13.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  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 1-13a 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.

	c.  Paragraph 1-13b 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was on medical leave from Fort Gordon while waiting for a physician's evaluation for combat fitness.  However, he provided no 

substantive evidence to support his contention.  His complete service medical records were not available for review.  His military records do not show he was in any type of medical hold status prior to or during the period of his AWOL.  However, his record shows he failed to report for his port call, actual date unknown, and he never reported to his assignment in Germany.

2.  He contends the adjutant general acknowledged an error had occurred and asked him to reconsider his discharge.  However, if an error had occurred in the determination of his AWOL status court-martial charges would not have been referred or would have removed and he would not have been eligible to apply for a discharge under the provisions of Army Regulation 635-200, chapter 10.  Therefore, not only has he provided no substantive evidence to support his contention, the evidence of record contradicts his contention.

3.  He contends he has been unable to get employment, housing, or military benefits.  However, at the time he requested a discharge he was advised if he received a discharge under other than honorable conditions he would:

* encounter substantial prejudice in civilian life
* be deprived of many or all Army benefits
* be ineligible for many or all VA benefits

Therefore, he was well aware of the consequences of his request for a discharge under the provisions of Army Regulation 635-200, chapter 10.

4.  The difficulties he has experienced with the VA and the Social Security Administration do not fall within the jurisdiction of the ABCMR.  Therefore, any discrepancies with the information maintained by those agencies should be addressed with the appropriate agency.

5.  His voluntary 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 administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

7.  He received NJP while still in AIT for AWOL.  He failed to report to his first assignment upon completion of BCT/AIT.  He failed to complete the term of service he contracted for, and he had 121 days of time lost.  Therefore, his period of service is clearly unsatisfactory.

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

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)                                         AR20130002660



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ABCMR Record of Proceedings (cont)                                         AR20130002660



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