RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            FEBRUARY 3, 2004                  
	DOCKET NUMBER:   AR2003090248

	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. Deyon D. Battle		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Curtis L. Greenway		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 an honorable discharge.

2.  The applicant states that he was never offered any help with his alcohol problem, which was the result of his younger sister’s death.  He states his sister’s death caused many problems for him that he just could not handle.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice, which occurred on 24 April 1973.  The application submitted in this case is dated 14 February 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.  On 14 February 1972, he enlisted in the Army in Springfield, Massachusetts, for 3 years, in the pay grade of E-1 and was transferred to Fort Dix, New Jersey, to undergo his training.  

4.  The applicant was still in advanced individual training when he initially went absent without leave (AWOL).  He went AWOL on 5 June 1972 and he remained absent until he returned to military control on 31 October 1972.  Upon his return to military control, he was placed in pretrial confinement.  

5.  On 14 November 1972, the applicant was notified that charges were pending against him for being AWOL.  On 16 November 1972, while he was still in confinement, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  Along with his request for discharge, he submitted a statement in his own behalf stating that in May of 1972, his sister had an accident and that she died.  He stated that the accident had a terrible affect on his entire family.  He stated that he believed that the accident would not have happened if he had been at home and that he was finding it very difficult to stay away from home.  

6.  In the statement that he submitted in his own behalf, he went on to state that he was constantly worried that something else might happen while he was away and that he got nervous when he received phone calls from home.  He stated that his nerves were only getting worst and he requested that he be granted a discharge.  He concluded by stating that his girlfriend wrote him a letter and told him that she was pregnant and he believed that he should be home to care for her and the baby.

7.  The applicant was on excess leave when a board of officers convened on 8 December 1972, to determine whether he should be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  The board of officers recommended that his request for discharge be denied and that he return to active duty no later than 5 January 1973.  In an undated memorandum, the appropriate authority approved the board’s recommendation.  However, he failed to return from excess leave.

8.  On 30 January 1973, the applicant was notified that charges were pending against him for being AWOL from 5 January until 23 January 1973 and the prior charge of being AWOL from 5 June until 31 October 1972.  He acknowledged receipt of the notification and after consulting with counsel; he again submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  Along with his request for discharge, he submitted a statement in his own behalf stating that he needed to be discharged for the good of the Army and himself.  He stated again that as a result of his sister’s death, he worried excessively about his family.  He went on to state that he tried to be discharged once before and that his request for discharge was denied.  He stated that his family and friends could not understand why he could not be discharged and that he would not feel better until he was released from the Army.  He concluded his statement by stating that he would not go AWOL again; however, if his request for discharge were denied, he would try other ways until he could go home.

9.  The appropriate authority approved the request for discharge on 26 March 1973.  Accordingly, on 24 April 1973, the applicant 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 8 months and 26 days of total active service and he had approximately 166 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

10.  There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  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.

DISCUSSION AND CONCLUSIONS:

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

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  However, a review of the available records fails to show that while he was in the Army he developed an alcohol problem as a result of his sister’s death.  It appears that his initial request for discharge was denied in an attempt to provide him with an opportunity to get himself together and to seek help with any problems that he might have been experiencing.  However, he chose to go AWOL rather than to seeking the help that he believed that he needed.  He was provided a second chance to successfully complete his service obligation and he failed to do so.  

4.  While empathetic to the death of his sister, it does not excuse the fact that he continued to go AWOL after he was given a second chance to succeed in the Army.  He had approximately 166 days of lost time due to AWOL and confinement.  His undesirable discharge appropriately characterizes his overall record of service.

5.  In order to justify correction of a military record the applicant must show 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.

6.  Records show the applicant should have discovered the error or injustice now under consideration on 24 April 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 23 April 1976.  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

rks_____  sac__  ___  clg___  __  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.  

		___Samuel a. Crumpler___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090248	
SUFFIX		
RECON		
DATE BOARDED	20040203YYYYMMDD	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730424	
DISCHARGE AUTHORITY	AR 635-200/CHAPTER 10	
DISCHARGE REASON	689/FOR THE GOOD OF THE SERVICE	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  708	144.7100.0000/AWOL	
2.		
3.		
4.		
5.		
6.