RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   5 April 2007
	DOCKET NUMBER:  AR20060012217 


	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.


	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 an honorable discharge. 

2.  The applicant essentially states that he asked multiple times to be released from his duties, but that his requests were denied.  He also states, in effect, that at the time, he was not happy with his personal life, and his marriage was very rocky, which caused problems at work.  He further states that he was anxious and could not concentrate on the job at hand. 

3.  The applicant provides no additional evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 March 1979, the date of his discharge from the Regular Army.  The application submitted in this case is dated 21 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.  The applicant’s military records show that he enlisted in the Mississippi Army National Guard on 14 April 1976.  On 2 January 1978, he was discharged from the Mississippi Army National Guard, and on 3 January 1978, he was ordered to active duty in the Regular Army for failure to satisfactorily participate in required unit training.  He was then assigned to Fort Hood, Texas.

4.  On 12 June 1978, the applicant received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 15 May 1978, and for going absent without leave (AWOL) on 18 May 1978, and remaining AWOL until on or about 5 June 1978.  His punishment consisted of reduction in rank from private/pay grade E-2 to private/pay grade E-1, forfeiture of $195.00 per month for 2 months, and 30 days correctional custody.  The applicant appealed this action, but on 16 June 1978, his appeal was denied.

5.  On 8 August 1978, the applicant went AWOL again, and was subsequently dropped from the rolls of the Army and listed as a deserter.  On 12 February 1979, the applicant surrendered to civil authorities, and he was returned to military control on 13 February 1979.

6.  On 20 February 1979, charges were preferred against the applicant for going AWOL from 8 August 1978 through 12 February 1979.

7.  On 21 February 1979, the applicant voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made this request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood that by submitting his request for discharge, he acknowledged that he was guilty of at least one of the charges against him or of a lesser-included offense, which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  

8.  In his request for discharge, the applicant also acknowledged that prior to completing his request, he was afforded the opportunity to consult with appointed counsel, who had fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appear to be available at that time; and the maximum permissible punishment if found guilty, and of the legal effect and significance of his suspended discharge.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.  

9.  The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.  He also acknowledged that he had been advised and understood the possible effects of an other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and 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 understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit a statement on his own behalf.  

10.  On 12 March 1979, the proper approval authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also directed that the applicant be reduced to the lowest enlisted grade unless already serving in that grade.

11.  On 20 March 1979, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows that he had 
202 days of lost time. 

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

13.  The applicant stated that his discharge should be upgraded because he asked multiple times to be released from his duties, but that his requests were denied.  He also stated that at the time, he was not happy with his personal life, and his marriage was very rocky, which caused problems at work.  He further stated that he was anxious and could not concentrate on the job at hand. 

14.  Although the applicant elected not to submit a statement on his own behalf during his separation proceedings, the applicant’s battalion-level commander interviewed the applicant on 22 February 1979.  This officer stated, in pertinent part, that the applicant stated to him that his AWOL was a result of him having personal problems; however, this officer surmised that the applicant was supposed to go to duty in Germany for 6 months but did not want to go, so he went AWOL.

15.  There is no evidence in his military records which shows that he ever requested assistance from his chain of command or external advocacy offices such as the chaplain with any problems he was having.

16.  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 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.
17.  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.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge. 

2.  Although the applicant stated that his discharge should be upgraded because he asked multiple times to be released from his duties, it was his own failure to satisfactorily participate in required unit training while assigned to the Mississippi Army National Guard that caused him to be ordered to active duty.  Additionally, although he stated that at the time, he was not happy with his personal life, and his marriage was very rocky, which caused problems at work, there is no evidence that he ever requested assistance from his chain of command with any problems he was having. 

3.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows that had 202 days of lost time due to AWOL, and accepted NJP under Article 15 of the UCMJ.  He voluntarily requested discharge from the Army in lieu of trial by court-martial.  Based on this 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 discharge or an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 March 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
19 March 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

__LS____  __JR  ___  ___SF __  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.




_____ Linda Simmons_______
          CHAIRPERSON


INDEX

CASE ID
AR20060012217
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19790320
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10 
DISCHARGE REASON
DISCHARGE IN LIEU OF TRIAL BY CM
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7100.0000
2.

3.

4.

5.

6.