RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 August 2007
      DOCKET NUMBER:  AR20070003036


      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. Paul M. Smith                 |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |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 be changed to an
honorable discharge.

2.  The applicant states, in effect, that he did not understand that he had
a problem at the time.

3.  The applicant provides no additional documents in support of his
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 is requesting correction of an alleged error or injustice
which occurred on 26 May 1987, the date of his discharge from active duty.
The application submitted in this case is dated 20 February 2007.

3.  The applicant enlisted in the Regular Army on 26 April 1978, for a
period of
3 years.  He completed the required training and was awarded military
occupational specialty 11B (Infantryman).  The highest rank he attained
while serving on active duty was Sergeant (SGT), pay grade E-5.

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

5.  On 4 May 1987, the applicant accepted nonjudicial punishment (NJP) for
failure to go to his prescribed place of duty.  His imposed punishment was
a forfeiture of $170.00 pay and 7 days of extra duty.



6.  On 13 May 1987, charges were preferred against the applicant for being
absent without leave (AWOL) from 1 to 12 May 1987 and for wrongful use of
marijuana, a controlled substance between 1 February 1987 and 4 March 1987.


7.  On 13 May 1987, 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 of
Military Justice, the possible effects of a discharge under other than
honorable conditions, 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 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 15 May 1987, the separation authority approved the applicant’s
request for discharge and directed that he receive an Under Other Than
honorable Conditions discharge.  On 28 November 1972, the applicant was
discharged accordingly.  The DD Form 214 he was issued confirms he
completed a total of 11 years, 8 months and 6 days of creditable active
military service and he had
15 days of lost time.

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.
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.  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’s contention was carefully considered and found to be
insufficient in merit.

2.  The evidence of record shows the applicant requested a 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.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___PMS   ___REB  ____RCH   _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____Paul M. Smith_______
                                            CHAIRPERSON
                            INDEX

|CASE ID                 |AR20070003036                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/08/28                              |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19870526                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10. . . . .         |
|DISCHARGE REASON        |Good of the service in lieu of          |
|                        |court-martial                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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