RECORD OF PROCEEDINGS

, OSCAR


	BOARD DATE:	  14 June 2007
	DOCKET NUMBER:  AR20060017552 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A.  Wright

Analyst

The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Ronald D. Gant

Member

Mr. Rowland C. Heflin

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, characterized as under other than honorable conditions (UOTHC), be upgraded to a general or an honorable discharge.

2.  The applicant states, in effect, that his UOTHC discharge should be upgraded to general or honorable.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 24 September 1984, the date of his discharge.  The application submitted in this case is dated 23 May 2006 but was received for processing on 21 December 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 record shows that he enlisted in the Regular Army on 9 November 1967, for 3 years, with an established expiration of term of service (ETS) of 8 November 1970.  The applicant successfully completed basic combat training and advanced individual training at Fort Benning, Georgia.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 12B, Combat Engineer.

4.  The applicant was convicted by a special court-martial on 8 August 1968, of being absent without leave (AWOL) from 5 April 1968 to 27 April 1968, and from 9 May 1968 to 6 July 1968.  His sentence consisted of confinement at hard labor for 5 months and reduction to the pay grade of E-1.



5.  In addition, item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record), shows that he was AWOL from 14 to 16 November 1969 (2 days), from 27 August 1970 to 8 November 1970 (74 days), from 9 November 1970 to 18 November 1976 (2,202 days), and was confined from 19 November 1976 to 6 February 1984 (2,255 days).  

6.  Item 27 (Remark), of his DA Form 2-1, shows that he was apprehended by civil authorities in Phoenix City, Alabama, on 6 July 1968, while in an AWOL status, and returned to military control on 7 July 1968.  He was subsequently arrested on 9 November 1976, by the Columbus, Georgia, Police Department.  He was confined and tried on 18 February 1977 for two counts of forgery, one count of possession of marijuana, and one count of escape.  He was sentenced to five years on each count, to run concurrently.  He was transferred to the Columbus Correctional Institution, Columbus, Georgia. 

7.  Item 28 (Item Continuation/of Item 21), of his DA Form 2-1, shows that the applicant was AWOL from 7 February 1984 to 24 September 1984 (230 days).

8.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy his DD Form 214 which shows that on 24 September 1984, he was discharged under the provisions of Army Regulation 635-200, chapter 14, section II, for a civil conviction, in the pay grade of E-1.  He was furnished a UOTHC discharge.  He had a total of 2 years, 5 months, and 26 days of creditable service and 5,256 days of lost time due to AWOL and confinement.  

9.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor 
disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.



11.  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.

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, 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review. 

3.  Careful consideration has been given to the applicant's contention that his UOTHC discharge should be upgraded.  However, there is no evidence in the available records, and the applicant has provided no evidence, to show that his discharge should be upgraded or was unjust. 

4.  The applicant was discharge for his civil conviction and his involvement in several incidents of misconduct, which included several instances of AWOL.  Therefore, there is an insufficient basis upon which to support his request for an upgrade of his UOTHC discharge.

5.  The evidence of record shows that the applicant accumulated an enormous amount of lost time due to AWOL and confinement.  An absence of this duration is serious and there is insufficient evidence to show that the applicant now deserves an upgrade of his discharge.  


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

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 September 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 23 September 1987.  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

__RCH__  __MKP__  __RDG__  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.




_____M. K. Patterson_____
          CHAIRPERSON




INDEX

CASE ID
AR20060017552
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070614
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19840924
DISCHARGE AUTHORITY
AR 635-200, chap 14
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.