RECORD OF PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            16 December 2003                  
	DOCKET NUMBER:    AR2003091653

	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	
	Mr. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. John N. Slone		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 discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states, in effect, that his discharge was unjust because he lacked the education and was too young to understand the repercussions of the discharge.  He further states that he was only absent without leave (AWOL) for 52 days and that he turned himself in.  No one explained his rights to him and he served honorably in the National Guard.  He also states that he is currently homeless.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice, which occurred on 8 August 1979.  The application submitted in this case is dated 3 May 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 Washington Army National Guard (WAARNG) on 6 December 1974, for a period of 6 years.  He entered his initial active duty for training (IADT) on 14 January 1975 and upon completion of his training was honorably released from active duty (REFRAD) on 13 May 1975.  He was returned to his WAARNG unit with the military occupational specialty (MOS) of a food service specialist (cook).

4.  On 16 January 1977, he was discharged under honorable condition from the WAARNG with a General Discharge Certificate and was involuntarily ordered to active duty on 17 January 1977, as a Reserve of the Army, for a period of 18 months and 12 days.  He was transferred to Germany on 8 February 1978.

5.  On 18 December 1977, nonjudicial punishment was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

6.  On 25 April 1978, the applicant was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 26 April 1978, for a period of 3 years and assignment to Fort Lewis, Washington.  He departed Germany on 26 July 1978 and reported to Fort Lewis on 12 September 1978.

7.  On 26 February 1979, he went AWOL and remained absent in a deserter status until he was apprehended by civil authorities in Phoenix, Arizona, on 6 June 1979.  He was transferred to Fort Ord, California, where charges were preferred against him for the AWOL charges and he was advised of his rights.

8.  The applicant consulted with counsel on 15 June 1979, at which time the counsel again advised the applicant of his rights and the repercussions of requesting and/or receiving a discharge under other than honorable conditions.  He also advised the applicant on the procedures as well as the unlikelihood of getting his discharge upgraded at a future date.  He also explained to the applicant that he would be deprived of benefits that would normally be derived from an honorable discharge and that he would be subject to the prejudices that are prevalent in civilian life for those persons who have a discharge under other than honorable conditions.

9.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.

10.  The applicant's commander indicated that the applicant stated that if he was returned to duty he would continue to go AWOL.  The commander recommended approval of his request and recommended that he be discharged under other than honorable conditions.

11.  The appropriate authority (a major general) approved his request on 23 July 1979 and directed that he be discharged under other than honorable conditions.

12.  Accordingly, he was discharged under other than honorable conditions while on excess leave, on 8 August 1979, under the provisions of Army Regulation      635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year and 3 days of active service during his current enlistment and had 100 days of lost time due to AWOL.

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

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was only AWOL for 52 days, that he turned himself in, and that he was not advised of his rights have been noted by the Board.  However, the evidence of record clearly establishes that they are without merit.  

2.  The applicant was AWOL for 100 days, he was apprehended by civil authorities, he was advised of his rights in writing and he acknowledged that he understood those rights with his signature. 

3.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.  While he may now believes that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the length of his absence as well as his otherwise undistinguished record of service during such a short period of time.
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.  Records show the applicant should have discovered the error or injustice now under consideration on 8 August 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 August 1982.  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

_SAC___  __JS_  __SLP____  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	AR2003091653	
SUFFIX		
RECON		
DATE BOARDED	2003/12/16	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	1979/08/08	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.