RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060009579 


	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. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Edward E. Montgomery

Member


	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 his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge was too severe because he was only absent without leave (AWOL) for 18 days. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a Federal Bureau Investigation (FBI) background check report, a drug test report, and twelve character letters in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 11 December 1981, the date of discharge.  The application submitted in this case is dated 21 June 2006.

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 limitations 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's military record shows he enlisted in the Regular Army on 20 February 1979.  He was trained in, awarded, and served in military occupational specialty (MOS) 13B (Cannon Crewman).  The highest rank he attained while serving on active duty was in the rank of specialist/pay grade E-4.  

4.  The applicant's records show he received the Army Service Ribbon and the Expert Marksmanship Qualification Badge with Rifle Bar with M-16 Rifle and Hand Grenade Bars.  

5.  The applicant's records do not show any significant acts of valor during his military service.


6.  On 21 October 1981, charges were preferred against the applicant for being AWOL during the period 8 May 1981 through 11 October 1981.  

7.  On 23 October 1981, 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 (Active Duty Enlisted Administrative Separations), chapter 10, and in so doing admitted guilt to the offense.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  

8.  On 9 November 1981, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  

9.  The applicant's DD Form 214 shows that he was separated on 11 December 1981, under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by court-martial and furnished an under other than honorable conditions discharge.  The applicant's DD Form 214 also shows that he served 2 years, 4 months, and 19 days of active military service.  His records show that he had 152 days of lost time due to being AWOL.

10.  The applicant provided twelve letters from various employers, co-workers, and friends who state the applicant was a very honest, sincere, respected worker, and any assistance that may help the applicant in his endeavors would be appreciated.

11.  The applicant provides a 21 June 2006 letter from the Veterans Service Office, Detroit Lakes, MN.  The Veterans Administrative Representative recommends upgrading the applicants discharge based on his post-service accomplishments.  The VA Representative states that the applicant has been a valuable asset to his office.  The VA Representative points out that the applicant has provided him information about veterans and their families who may be eligible for assistance from the Veterans Service Office.  The VA Representative states that the applicant has made great advances in his life and is a dependable worker. 

12.  The applicant submitted a Federal Bureau of Investigation Identification Record, dated 16 January 2006.  The FBI Report shows the applicant was charged with the following offenses on: 21 January 1995, for 3rd degree assault; on 31 December 1995, for driving while intoxicated (DWI); on 3 October 1998, for DWI-aggravated violation and suspension of his drivers license; and on 27 April 2000, for DWI-aggravated violation and his drivers license was revoked, probation for six months and conditional confinement with credit for time served-nights.  

13.  The applicant submitted an April 2006, Quest Diagnostics Drug Use Report, which shows negative results for any drug abuse. 

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

15.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

16.  Army Regulation 635-200, paragraph 3-7a, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  Army Regulation 635-200, paragraph 3-7b, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

18.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for an AWOL in excess of 30 days.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because his discharge was too severe based on being AWOL for 18 days.

2.  Although the applicant contends he was only AWOL for 18 days, his military records show that charges were preferred against him for being AWOL for the period during 8 May 1981 through 11 October 1981 for a total of 153 days and that he voluntarily requested discharge in lieu of a trial by court-martial.

3.  Additionally, discharge under the provisions of Chapter 10 of Army Regulation 635-200 requires an admission of guilt to the offenses charged and usually results in a discharge under other than honorable conditions.  

4.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

6.  The applicant's contention regarding his post-service achievements and conduct were considered.  Additionally, the letters of support provided attests to the applicant's post-service accomplishments, achievements and driving violations.  However, his post-service conduct alone is not a basis for upgrading his discharge.

7.  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.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 December 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 10 December 1984.  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 timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JEA____  _JLP___  __EEM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____James E. Anderholm___
          CHAIRPERSON




INDEX

CASE ID
AR20060006169
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070206
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON
ch 10 no-ADRB
BOARD DECISION
DENY
REVIEW AUTHORITY
Director
ISSUES         1.

2.

3.

4.

5.

6.