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ARMY | BCMR | CY2007 | 20070000248C071108
Original file (20070000248C071108.doc) Auto-classification: Denied



                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 June 2007
      DOCKET NUMBER:  AR20070000248


      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. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dean A. Camarella             |     |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, an upgrade of his under other than
honorable conditions discharge.

2.  The applicant states, in effect, that the reason for his lost time was
due to a death in his family that took a toll on him.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 September 1981, the date of his discharge from active
duty.  The application submitted in this case is dated 15 December 2006 and
received on
2 January 2007.

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 12 September 1979 for a
period of 3 years.  He completed basic and advanced individual training and
was awarded the Military Occupational Specialty (MOS) 63B (Power Generation
Mechanic).  The highest rank he attained while serving on active duty was
Private (PVT), pay grade E-1.

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

5.  The applicant’s military record reveals that on 10 January 1980 he
accepted nonjudicial punishment (NJP) for failure to go to his prescribed
place of duty.  His punishment was 5 days of extra duty.



6.  On 18 January 1972, court-martial charges were preferred against the
applicant for being absent without leave (AWOL) from 9 May 1980 to 28 July
1981.

7.  On 4 August 1981, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the Uniform Code for
Military Justice (UCMJ), the possible effects of an undesirable discharge,
and of the procedures and rights that were available to him.  Subsequent to
receiving this legal counsel, the applicant voluntarily requested discharge
for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, the applicant acknowledged that a court-
martial could, upon a finding of guilty, sentence him to a bad conduct or
dishonorable discharge.  He further acknowledged that he understood that if
his discharge request was approved, he could be deprived of many or all
Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.

9.  On 19 August 1981, the separation authority approved the applicant’s
request for discharge and directed that he receive an Under Other Than
Honorable Discharge Certificate.  On 28 September 1981, the applicant was
discharged accordingly.  The DD Form 214 he was issued confirms he
completed a total of 9 months and 28 days of creditable active military
service.

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 (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.  An undesirable discharge 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 in effect, that his discharge be upgraded.

2.  The evidence of record shows the applicant voluntarily requested
discharge in lieu of trial by court-martial.

3.  Based on his disciplinary record, the applicant's service clearly does
not meet the standards of acceptable conduct and performance of duty for
Army personnel.  Therefore, he is not entitled to an honorable or general
discharge.

4.  The evidence of record confirms that all requirements of law and
regulation were met and the applicant’s rights were fully protected
throughout the separation process.  The record further shows the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 September 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
27 September 1984.  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

___JTM__  ___WFC_  ___DAC_  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 appear in the interest of justice to
excuse the applicant’s failure to timely file this application within the 3-
year statue of limitations prescribed by law.  Therefore, this insufficient
basis to waive the statue of limitations for timely filing or for
correction of the records of the individual concerned.




                                         _  John T. Meixell_      _
                                            CHAIRPERSON






                                    INDEX

|CASE ID                 |AR2007000248                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/06/28                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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