RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060011203 


	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:


Mr. Mark Manning

Chairperson

Mr. John Meixell

Member

Mr. Qawiy Sabree

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 clemency be granted in the form of a general discharge.

2.  The applicant states, in effect, that his back was injured when a locker fell on it.  He contends that he was given a profile for his back; however, his unit would not adhere to it and he could not perform his assigned duties.  He states that he went absent without leave (AWOL) to get his help for his back.  

3.  The applicant provides a psychiatric report, dated 18 May 2006; two character reference statements; a letter, dated 10 May 2006, from his local police department; a letter, dated 10 May 2006, from his civilian physician; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 14 December 1982.  The application submitted in this case is dated 12 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 enlisted in the Regular Army on 29 April 1980 for a period of 3 years.  He successfully completed basic training and advanced individual training in military occupational specialty 64C (motor transport operator). 

4.  On 13 March 1981, nonjudicial punishment was imposed against the applicant for being AWOL from 20 February 1981 to 9 March 1981.  His punishment consisted of a reduction to private first class/E-3 and correctional custody.  

5.  The applicant went AWOL on 8 June 1981 and returned to military control on 5 August 1981.  He was placed into confinement on 6 August 1981 and released on 7 September 1981.

6.  On 10 September 1981, contrary to his pleas, the applicant was convicted by a special court-martial of being AWOL from 8 June 1981 to 5 August 1981, behaving with disrespect toward a superior commissioned officer, and disobeying a lawful command.  He was sentenced to be discharged from the service with a bad conduct discharge.  He was placed on excess leave on 15 September 1981. On 20 October 1981, the convening authority approved the sentence.    

7.  The decision of the U.S. Army Court of Military Review is not in the available records.  However, orders, dated 29 October 1982, show the sentence was affirmed and the bad conduct discharge was ordered to be executed.  

8.  The applicant’s DD Form 214 erroneously shows that he was discharged under other than honorable conditions on 14 December 1982 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 2 years and 4 months of creditable active service with 106 days of lost time due to AWOL and confinement.

9.  There is no evidence in the available records which shows the applicant had any medical problems prior to his discharge.

10.  In support of his claim, the applicant provided a psychiatric report which states that he has been treated by a mental health facility since 1988 and is diagnosed with schizophrenia.  He also provided two character reference letters, a letter from the local police department indicating that the applicant does not have a criminal record, and a letter from his physician reporting that the applicant’s medical conditions include schizophrenia, diabetes, hypercholesterolemia, and hypertension.   

11.  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.

12.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

13.  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.

14.  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.

15.  Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant should have been discharged with a bad conduct discharge under the provisions of Army Regulation 635-200, chapter 11.  However, his DD Form 214 erroneously shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge under other than honorable conditions.  

2.  The applicant’s claim that back problems caused him to go AWOL does not provide a basis for upgrading his discharge.  There is no medical evidence of record which shows the applicant had any medical problems prior to his 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 prior to going AWOL.  This contention relates to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his court-martial proceedings.      

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  The applicant’s record of service included, in addition to the special court-martial that resulted in his bad conduct discharge, one nonjudicial punishment and 106 days of lost time.  As a result, his record of service was not satisfactory and a general discharge is not warranted in this case.

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 14 December 1982, the date of his separation from the Army; therefore, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 13 December 1985.  However, the applicant has provided evidence to support his request for a grant of clemency based on good post-service conduct.  In view of the submitted evidence and since good post service conduct could only accrue subsequent to discharge from the Army, it is in the interest of justice to waive failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

MM____  __JM____  __QS____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




___Mark Manning_______
          CHAIRPERSON




INDEX

CASE ID
AR20060011203
SUFFIX

RECON

DATE BOARDED
20070222
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19821214
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.