RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           25 November 2003 
	DOCKET NUMBER:   AR2003085296

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Yolanda Maldonado		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his undesirable discharge be upgraded to honorable.  

2.  The applicant states, the presumption or regularity that might normally permit you to assume that the service acted correctly in characterizing his service as less than honorable, does not apply to his case, because of the following reasons: That his military record shows he was absent without leave (AWOL) when his AWOL status is solely due to his wife condition of being critical ill.  That he claims that his wife was close to death.  That in desperation to find the best doctors they both trusted, he took his wife to Mexico for treatments, where all of his time was used on his wife’s illness.  He points out that, since that time, he has been an exemplary citizen, by obtaining a technological degree, helping to raise six children and as an active minister in his church.  He states he deeply regrets his AWOL status, but his only thought then was the urgent critical condition of his very ill wife and graciously request reconsideration of his case.   

3.  The application is dated 3 May 2001 and the applicant explains that he did not apply earlier because he only recently learned that he could request an upgrade of his discharged.

4.  The applicant provides letters of reference from three fellow church ministers who have known him from 15 to 26 years and who are attesting to his good character, being a good father and family man, a church leader, a good citizen and morally responsible person.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice, which occurred on 30 January 1975.  The application submitted in this case is dated 5 January 2003.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 12 September 1972.  He completed basic training and advanced individual training and was awarded military occupational specialty 94B20 (Food Service Specialist) and was then assigned to duty in Germany from 9 February to 20 June 1973.  

4.  While on ordinary leave and prior to reporting for duty at Fort Sam Houston, Texas, he was absent without leave (AWOL) from 1 - 21 June 1973.  His unit twice contacted him via the Red Cross, and was told he refused to leave his pregnant wife who was in Mexico.    

5.  On 1 July 1973, the applicant's commander wrote to the applicant's wife informing her that the applicant was AWOL and in serious trouble.  She was encouraged to help him turn himself into the nearest military authorities.

6.  On 15 October 1973, the applicant was returned to military control at the United States Army Personnel Control Facility, Fort Hood, Texas.  

7.  A Fort Hood (FH) Form 943 (AWOL Returnee Information Sheet), shows that the applicant was apprehended by civilian authorities in Brownsville, Texas.  He was then turned over to the military authorities on 14 October 1973.  
The form also shows that the US Army Personnel Control Facility, Fort Hood, Texas, issued the applicant a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being AWOL from 21 June to 15 October 1973, which is not part of his military record.  

8.  On 9 December 1974, mental status evaluation and separation physical found the applicant qualified for separation.

9.  On 6 January 1975, the applicant was charged with one specification of violation of Article 86, Uniform Code of Military Justice of being AWOL from 
23 October 1973 to 27 November 1974.

10.  On 10 January 1975, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged that he was guilty as charged or of a lesser-included offense for which he could receive a bad conduct or dishonorable discharge.  He indicated that he did not desire further rehabilitation and that he had no desire to perform military service.  He acknowledged that he understood the nature and consequences of being discharged under other than honorable conditions and of the Undesirable Discharge Certificate that he might receive, including that he might lose some or all veteran benefits.  He submitted a statement in his own behalf.  In essence he stated that, since October 1973, he had been in jail in Mexico, without the benefit of trial after having had an automobile accident.  He further claimed that the evidence would substantiate his story and he requested favorable consideration for discharge.  The command could not confirm his story through the American Consulate.    

11.  On 16 January 1975, the separation authority approved the applicant’s request and directed the issue of an Undesirable Discharge Certificate.

12.  On 30 January 1975, he was separated and issued an Undesirable Discharge Certificate.  He had 11 months and 20 days of creditable service and 516 days of lost time due to AWOL.  The highest pay grade he attained was E-2.

13.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable discharge.

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

15.  The Manual for Courts-Martial, Table of Maximum Punishments, shows that a punitive discharge is authorized for any AWOL of more than 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s 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.  His service was appropriately characterized.

2.  The Board notes the applicant’s contention about his wife’s illness, however, there is no substantiating evidence that the events occurred as he contends.  The Board also notes that the applicant’s unit attempted to rectify his leave status through contact with his wife in July 1973 and that he declined to return to his unit or turn himself in.

3.  Further, his good post service conduct, actions, education and letters of character reference are commendable.  However, these factors do not outweigh the serious nature of the offense, therefore, they are not sufficiently mitigating to warrant relief.

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.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.

6.  Records show the applicant should have discovered the error or injustice now under consideration on 30 January 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 January 1978.  

7.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___RVO_  ___LEM _  __YM ___  DENY APPLICATION 

BOARD DETERMINATION/RECOMMENDATION:
 
The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		_Raymond V. O’Connor, Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2003085295	
SUFFIX		
RECON		
DATE BOARDED	20031125	
TYPE OF DISCHARGE	UD 	
DATE OF DISCHARGE	19740614	
DISCHARGE AUTHORITY	AR635-200, Ch 10.  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A110.02	
2.	A94.07	
3.