RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 August 2007
	DOCKET NUMBER:  AR20070001572 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Bernard P. Ingold

Chairperson

Mr. Thomas M. Ray

Member

Mr. Gerald J. Purcell

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 upgrade of his discharge.

2.  The applicant states that he should not have been allowed to enter the military.

3.  The applicant contends that he provided copies of his military records with his application, however, there were no records attached with his application.  The applicant's military service records were available through official channels with this application. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he enlisted in the Regular Army on 9 October 1967.  Records show that he completed basic combat training and was enrolled in advanced individual training.  The applicant was not awarded a military occupational specialty.  The highest rank he attained while serving on active duty was private/pay grade E-2.

3.  The applicant’s records do not show any significant acts of valor during his military service.

4.  On 23 April 1968, the applicant was convicted by Special Court-Martial of being absent without leave (AWOL) during the period on or about 14 January 1968 through on or about 9 April 1968.  His punishment consisted of confinement at hard labor for four months.



5.  On 19 November 1968, the applicant was convicted by a Special Court-Martial of being AWOL during the period 24 May 1968 through on or about 10 August 1968 and 38 specifications of unlawfully writing checks without sufficient funds for payment.  He was sentenced to confinement at hard labor for 5 months and forfeiture of $97.00 a month for 5 months.

6.  On 5 November 1969, 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 UCMJ, the possible effects of a bad conduct or dishonorable 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.

7.  In his request for discharge, the applicant indicated that he understood by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged 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.  

8.  On 17 November 1969, the court-martial convening authority recommended disapproval of the applicant’s request for discharge and directed that he be discharged from the service with a punitive discharge through a General Court-Martial.

9.  On 28 November 1969, the separation approval authority directed that the applicant be discharged from the service with an undesirable discharge.  On 3 December 1969, the applicant was discharged with a character of service of under conditions other than honorable.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 3 years, 4 months, and 24 days of creditable active military service with 632 days lost due to being AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue 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, which 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.  At the time, an undesirable discharge was 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.  There is no evidence in the available records which supports the applicant's contention that he should not have been allowed to enter military service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Evidence of record shows that the applicant had 632 days of lost time and was convicted of 38 specifications of writing bad checks during his military service.  

3.  Although the applicant's request for discharge in lieu of court-martial was denied by appropriate military authorities, it must be noted that separations under this provision of regulation are voluntary and the requestor must admit guilt to the charges against him.  Additionally, 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 contends that he should never have been allowed to enter military service.  He gives no further explanation of his contention and there is no evidence in the available records which support this claim.  Absent such evidence, there is no basis to grant the applicant's request for relief.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_BPI_____  _GJP___  _TMR___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





___Bernard P. Ingold__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.