RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060011005 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Marla Troup

Chairperson

Mr. John Heck

Member

Mr. Donald Lewy

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, in effect, that his discharge under other than honorable conditions be upgraded to a general discharge or an entry level separation with service uncharacterized.

2.  The applicant states that his mother was sick, that he was the only child at the time, and that he completed two and one half years in service.  

3.  The applicant provides no additional evidence in support of his application.
 
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 3 October 1979.  The application submitted in this case is dated 24 July 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 enlistment contract shows he enlisted on 23 June 1977 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 94B (cook).  

4.  On 16 October 1978, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 6 October 1978 to 
12 October 1978.  His punishment consisted of a reduction to E-1 and extra duty. On 31 October 1978, the punishment of reduction to E-1 was set aside.

5.  In 1979, nonjudicial punishment was imposed against the applicant for being AWOL from 20 March 1979 to 29 April 1979.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  The applicant went AWOL on 1 June 1979 and returned to military control on 22 August 1979.  On 4 September 1979, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

7.  On 4 September 1979, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an other than honorable discharge.  He elected not to make a statement in his own behalf. 

8.  On 26 September 1979, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

9.  Accordingly, the applicant was discharged under other than honorable conditions on 3 October 1979 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial.  He had served
2 years and 23 days of total active service with 128 days of lost time due to AWOL.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was separated on temporary records and a Soldier’s affidavit.   

10.  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.

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

12.  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.

13.  Army Regulation 635-200 states that a separation will be described as an entry level separation with service uncharacterized if processing is initiated while a Soldier is in entry level status.  Entry level status is defined as the first 180 days of continuous active duty.  

DISCUSSION AND CONCLUSIONS:

1.  Personal/family problems are not grounds for upgrading a discharge.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  The applicant’s record of service included two nonjudicial punishments and 128 days lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

5.  Since the applicant completed 2 years and 23 days of service, there is no basis for granting his request for an entry level separation with uncharacterized service.

6.  The applicant’s enlistment contract shows that he enlisted on 23 June 1977 instead of 21 June 1977 which is shown on his DD Form 214.  It appears that the 21 June 1977 entry date was derived from temporary records and the Soldier’s affidavit at the time of his discharge processing.  The applicant is advised that he may request administrative correction of this error plus completion of other items on the DD Form 214 by applying to the Veterans Support Branch, Human Resources Command (HRC), ATTN: AHRC-PAV-V, 1 Reserve Way, St. Louis, Missouri 63132-5200.

7.  Records show the applicant should have discovered the alleged injustice now under consideration on 3 October 1979; therefore, the time for the applicant to file a request for correction of any injustice expired on 2 October 1982.  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

MT____  ___JH_____  _DL_____  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.




____Marla Troup______
          CHAIRPERSON




INDEX

CASE ID
AR20060011005
SUFFIX

RECON

DATE BOARDED
20070221
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19791003
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service, in lieu of court-martial
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.