RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060012385 


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

2.  The applicant states, in effect, that his drug test was unfair and erroneously administered.  Although he fought it and won, his military occupational specialty (MOS) was changed, he was reassigned, and driven out of the Army.  The unit commander did not like him because he belonged to a group who listened to rock music; however, he was wrong to protest the unit commander's actions by going absent without leave (AWOL).  He wants his time in the Army to count for something and he is tired of being embarrassed.  Since his discharge, he has not been in trouble.  He recently had a stroke and is afraid to die and have this on his record.

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 30 August 1983, the date of his discharge from the 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.  On 28 January 1978, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for six years.  On 20 February 1978, he was discharged from the DEP and enlisted in the Regular Army for three years.  He completed training requirements and was awarded MOS 67N1O (Utility Helicopter Repairman).  On 23 April 1981, the applicant reenlisted for three years.

4.  The applicant was promoted to sergeant/E-5 on 10 May 1981.  He received the Good Conduct Medal, the Army Service Ribbon, the Aircraft Crewman Badge, and the Overseas Service Ribbon.
5.  On 10 June 1983, the applicant was removed from further aviation maintenance duties and mandatorily reclassified into MOS 64C (Motor Transport Operator) with on-the-job training for the reason of a positive urinalysis for marijuana.  However, the urinalysis results were not in the official record.  There is no evidence that he received non-judicial punishment for the illegal use of marijuana or that he was reduced in grade.

6.  On 5 August 1983, the applicant was charged with three periods of AWOL; from 20 June to 4 July 1983, from 5 July to 11 July 1983; and from 12 July to
26 July 1983).  On 10 August 1983, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.

7.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army 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 a discharge under other than honorable conditions.  He indicated that he was submitting a statement in his own behalf; however, this statement is not a part of the official record.

8.  On 16 August 1983, the separation authority approved the applicant's request for discharge and directed he be issued an under other than honorable conditions discharge.

9.  Accordingly, the applicant was discharged on 30 August 1983 under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with service characterized as under other than honorable conditions.  He was reduced to private/E-1.  The applicant completed 5 years, 6 months, and 10 days of creditable active duty and had 37 days of lost time due to AWOL in the period of service under review.

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 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.

12.  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.

13.  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 requests that his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There was no evidence found of arbitrary or capricious actions by the command.  Evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He consulted with counsel prior to making his voluntary choice to request separation.





3.  The applicant completed over 5 years of honorable service prior to the incidents which led to his discharge.  He attained the grade of sergeant/E-5 and received the Good Conduct Medal.

4.  Although the applicant was reclassified, ostensibly for having a positive urinalysis, the documentation of this incident was not available for the Board's review.  However, he did not receive NJP nor was he reduced in grade.

5.  The applicant went AWOL on three occasions for a total of 37 days.  His periods of AWOL occurred during his last three months of service after he had completed 5 years of honorable service.

6.  Notwithstanding the propriety of the applicant's discharge, the applicant's five years of honorable service prior to the misconduct which led to his discharge was carefully considered.  While the applicant's misconduct is not condoned, and even the applicant admits to a lapse in personal judgment, he had service of sufficient length and merit to partially mitigate his periods of AWOL.  Accordingly, it would be in the interest of justice to partially grant the applicant's request as shown below.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 August 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 August 1985.  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 

__kan___  __lvd___  __dkh___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was discharged as a sergeant/E-5 with a general, under honorable conditions discharge on 30 August 1983.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an honorable discharge.



							Kathleen A. Newman
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060012385
SUFFIX

RECON

DATE BOARDED
20070320
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19830830
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.