RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060013139 


	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. Gerard W. Schwartz

Acting Director

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. Lester Echols 

Chairperson

Ms. Linda M. Barker

Member

Mr. Michael J. Flynn

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.

2.  The applicant states it has been over 30 years and he has been through two divorces since he was discharged at Fort Dix, New Jersey.  The applicant continues that he was awarded the Armed Forces Expeditionary Medal, the National Defense Service Medal, and the Good Conduct Medal (2nd award).

3.  The applicant states that prior to his discharge he graduated 13th out of 240 from the Non-Commissioned Officers Academy, an excellent Soldier, and had an excellent military record.  The applicant continue that after his divorce he lost his kids, incurred $38,800 worth of bills and was discharged for non payment of the bills.

4.  The applicant continues that he took leave to get support and help from his relatives, but admits he never returned to duty.  The applicant states he received letters from the Army a couple of times offering to upgrade his discharge to a general under honorable discharge and realizes he should have taken the offer.

5.  The applicant continues that he receives disability through Social Security and would now have peace of mind if his discharge was upgraded.

6.  The applicant did not provide any 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 25 February 1977, the date of his discharge.  The application submitted in this case is dated 14 September 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 records do not contain the complete facts and circumstances of his separation.

4.  The applicant enlisted in the Regular Army and entered active duty on 4 November 1969.  He was trained in, awarded, and served in military occupational specialty (MOS) 94B (Cook) and served until he was honorably discharged on 11 February 1971.  On 12 February 1971, he reenlisted in the Army.  The highest rank he attained while serving on active duty was sergeant/pay grade E-4.

5.  The applicant's record shows he was awarded the Armed Forces Expeditionary Medal, the National Defense Service Medal, and the Good Conduct Medal (2nd award).

6.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  

7.  The applicant's record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following separate occasions for the offenses indicated:  31 March 1971, for being drunk and disorderly in the company area; and 4 June 1973, for wrongfully engaging in a fist fight.  

8.  On 6 August 1976, charges were preferred against the applicant for being absent without leave (AWOL) from on or about 7 July 1976 through on or about 6 August 1976.

9.  Headquarters, U.S. Army Training Center, Fort Dix, New Jersey, Orders Number 56-221, dated 25 February 1977, shows the applicant was discharged on 25 February 1977, and issued an under other than honorable conditions discharge certificate. 

10.  The DD Form 214 (Report of Separation from Active Duty) dated 25 February 1977, confirms the applicant completed a total of 6 years, 9 months, and 3 days of creditable active military service and that he accrued a total of 203 days of time lost due to being AWOL.

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.  There is no evidence in the available records which show that the applicant consulted with pertinent military officials regarding his personal situation or sought help through military family support services.

13.  Army Regulation 635-200 (Personnel Separations) 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.

14.  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.

15.  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 under other than honorable conditions discharge should be upgraded because he could not pay his bills due to divorce.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations, in which the applicant must admit guilt of the charges.  Although, the applicant's separation processing paperwork is not available for review with this case, it is presumed that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  


3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant's record of service included two nonjudical punishments for being drunk, disorderly, fighting, and being AWOL for 203 days.

5.  Although the applicant contends that he was unable to pay his bills and going through a divorce there is no evidence in the available records and the applicant has not provided sufficient evidence which shows he sought assistance from his chain of command or any other individual for assistance with any personal family issues.  There is also no evidence in the available records which shows this was the cause of his indiscipline.

6.  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 and lost time also renders his service unsatisfactory. Therefore, he is not entitled to either a general under honorable conditions discharge or an honorable discharge.

7.  Accordingly, the type of discharge directed and the reason for discharge are appropriate considering all the facts of the case.

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

9.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 February 1977; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 24 February 1980.  However, 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

___LE___  _MJF_ _  __LMB___  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.




___Lester Echols ___
          CHAIRPERSON




INDEX

CASE ID
AR20060013139
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1977/02/25
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
ch10 
BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.