RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 September 2007
      DOCKET NUMBER:  AR20070003501


      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. Thomas A. Pagan               |     |Chairperson          |
|     |Mr. Eric N. Andersen              |     |Member               |
|     |Mr. Paul M. Smith                 |     |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 the type of discharge he
received be corrected.

2.  The applicant states, in effect, that his discharge under other than
honorable conditions was due to personality or character and behavior
disorder that was unsupported by a psychiatric diagnosis.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) 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 3 July 1979, the date of his discharge from active duty.
The application submitted in this case is dated 28 February 2007.

3.  The applicant enlisted in the Regular Army on 16 July 1977, for a
period of
3 years.  He completed the required training and was awarded military
occupational specialty 91B (Medical Specialist).  The highest rank he
attained while serving on active duty was Private (PV2), pay grade E-2.

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

5.  On 17 April 1978, the applicant accepted nonjudicial punishment (NJP)
for being absent without leave (AWOL) from 13 to 27 March 1978 and from
3 to 5 April 1978.  His punishment included reduction to pay grade E-1,
correctional custody for 7 days, and a forfeiture of $75.00 pay for one
month.
6.  On 3 October 1978, the applicant accepted nonjudicial punishment (NJP)
for being absent from his appointed place of duty from 2 to 3 October 1978.
 His punishment included 7 days extra duty, a forfeiture of $50.00 pay
(suspended for 60 days), and 14 days restriction (suspended for 60 days).

7.  On 8 December 1978, the applicant accepted nonjudicial punishment (NJP)
for being absent from his appointed place of duty on 5 December 1978.  His
punishment included 14 days extra duty, a forfeiture of $50.00 pay, and 14
days restriction.

8.  On 21 December 1978, the applicant accepted nonjudicial punishment
(NJP) for possession of an illegal substance, marijuana.  His imposed
punishment was a reduction to pay grade E-1 and a forfeiture of $100.00
pay.

9.  On 8 January 1979, the applicant's duty status changed from present for
duty to AWOL.  His records show he was dropped from the rolls of the Army
on
8 February 1979 and he remained AWOL until 12 May 1979.  On 14 May 1979,
the applicant was returned to military control pending charges.

10. The facts and circumstances surrounding the applicant's discharge are
not present in the available records.  However, his records contained a
copy of his DD Form 214 which shows that he was discharged on 3 July 1979,
in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter
10, with an under other than honorable conditions discharge.  The DD Form
214 he was issued confirms he completed a total of 1 year, 6 months, and 29
days of creditable active military and 142 days of time lost due to AWOL.

11.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statute of limitations.

12.  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, submit a request for discharge for the good of the service
in lieu of trial by court-martial.  The request may be submitted at any
time after charges have been preferred and must include the individual's
admission of guilt.  Although an honorable or general discharge is
authorized, a discharge under other than honorable conditions is normally
considered appropriate.

13.  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.

14.  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.

15.  Army Regulation 635-200, paragraph 3-7c, defines an under other than
honorable conditions discharge.  A discharge under other than honorable
conditions is an administrative separation from the service under
conditions other than honorable.  When authorized, it is issued to a
Soldier for misconduct or in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence shows the applicant was AWOL from 13–26 March 1978,
3-4 April 1978, and 8 January to 12 May 1979.  As such, a discharge under
other than honorable conditions for conduct in lieu of trial by court-
martial was equitable and proper.

3.  There is no evidence that shows that the applicant was discharged due
to a personality, character, or behavior disorder.  Therefore, no
correction to the applicant’s type of discharge is required.

4.  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.

5.  There is no evidence which shows the applicant was not properly and
equitably discharged in accordance with the regulations in effect at the
time and that all requirements of law and regulations were not met, or the
rights of the applicant were not fully protected throughout the separation
process.  Absent such evidence, regularity must be presumed in this case.

6.  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

___TAP _  ___ENA  _  ___PMS_  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.




                                  ____Thomas A. Pagan____
                                            CHAIRPERSON





                                    INDEX

|CASE ID                 |AR20070003501                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/09/013                             |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19790703                                |
|DISCHARGE AUTHORITY     |AR 600-200, Chapter 10. . . . .         |
|DISCHARGE REASON        |Conduct Triable by court-Martial        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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