RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060010882 


	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. Anita McKim-Spilker

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 that his under other than honorable conditions discharge be upgraded to honorable conditions and that the narrative reason for discharge be changed.  

2.  The applicant states, in effect, that he believes he was treated unfairly and that he was done wrong because he was really enjoying his time in the Army.  He contends that prior to going on leave he advised the first sergeant that he did not have sufficient funds to get back, and the first sergeant was supposed to mail him his pay check to his home.  When the first sergeant did not mail his check, he went to Fort Dix, New Jersey and advised them he was trying to return to his unit.  That is when he was informed that he was considered to be in absent without leave (AWOL) status.  It is unfair to characterize his service so harshly when all he was doing was trying to make his way back to his unit.

3.  The applicant did not provide additional documentary evidence in support of this application.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 24 April 1981, the date he was discharged from the Army.  The application submitted in this case is undated; however, was received on 
2 August 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.  On 4 May 1979, the applicant enlisted in the Regular Army for a period of three years.  He was trained in, awarded, and served in military occupational specialty (MOS) 11B (Infantryman).  



4.  On 9 June 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for AWOL
(31 May – 5 June 1980).  His punishment consisted of a reduction to private/E-1, a forfeiture of $75.00, and 15 days of extra duty.  

5.  The official record does not contain the applicant's discharge packet.  However, his DA Form 2-1 (Personnel Qualification Record) and his DD Form 214 (Certificate of Release or Discharge from Active Duty) show that he had four periods of AWOL for a total of 178 days.  He was discharged on 24 April 1981 under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Personnel Separations), by reason of conduct triable by court-martial, with an under other than honorable conditions discharge.  He was credited with 1 year, 5 months, and 24 days of active duty service.

6.  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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

7.  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.

8.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge packet is not contained in the record.  However, the available evidence shows that he received NJP on one occasion for AWOL and had four separate periods of AWOL for a total of 178 days of lost time.

2.  The evidence of record shows the applicant was discharged under the provisions of chapter 10, AR 635-200, by reason of conduct triable by court-martial.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  In the absence of information to the contrary, the Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant would have been aware of that prior to requesting discharge.  Therefore, in the absence of evidence to the contrary, the Board is compelled to presume administrative regularity in the discharge process.  

3.  Contrary to the applicant's contentions, he had four periods of AWOL, one of which lasted for 169 days.  Given this evidence, the characterization of service is commensurate with the misconduct of record, and the applicant failed to provide sufficiently mitigating evidence to warrant a change in the type of discharge he received.

4.  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 did not submit any evidence that would satisfy this requirement and there is no justification to change his characterization of service or the narrative reason for discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 April 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
23 April 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
AR20060010882
SUFFIX

RECON

DATE BOARDED
20070206
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19810424
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.