RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 September 2007
      DOCKET NUMBER:  AR20070004777


      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. Nancy L. Amos                |     |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 that his discharge under other than honorable
conditions (UOTHC) be upgraded to fully honorable.

2.  The applicant states he successfully completed an overseas tour in
Korea.  He has been very progressive and active in his community,
workplace, and family.  He has two daughters.  He has attended several
trade schools and several classes for self-improvement.  He has been
continuously working in the security field.   He now desires to work for
the Sheriff’s Department, Homeland Security, the Border Patrol, or possibly
re-enter the Armed Forces.  Recruiters have told him that an upgrade in his
discharge along with his prior and present work skills will put him in the
position to obtain one of his career goals.  It will also allow him to
enjoy all the benefits of being a veteran.  Despite his rocky past, he has
matured into a loving, responsible father, friend, and co-worker.

3.  The applicant provides the birth certificates of his two daughters; a
photograph of himself with his two daughters; two letters of support, one
undated and one dated 27 February 2007; and a certificate of completion.

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 was born on 20 July 1966.  He enlisted in the Regular
Army on 28 August 1984.  He completed basic training and advanced
individual training and was awarded military occupational specialty 13B
(Cannon Crewmember).

3.  On 18 July 1986, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully
using marijuana between on or about 2 June 1986 and 2 July 1986.

4.  On 1 February 1987, the applicant accepted NJP under Article 15, UCMJ
for failing to go to his appointed place of duty.  His punishment was 14
days extra duty, 14 days restriction, and a forfeiture of 7 days pay for 1
month (suspended for 90 days).

5.  On 6 February 1987, the applicant underwent a separation physical and
was found qualified for separation.

6.  On 17 February 1987, court-martial charges were preferred against the
applicant, charging him with four specifications of failing to go to his
appointed place of duty; one specification of willfully disobeying a lawful
command; and one specification of losing, through neglect, Government
property of a value of about $61.04.

7.  On 23 February 1987, the applicant failed to go to his appointed place
of duty and the suspension of the forfeiture of pay from his previous
punishment under Article 15 of the UCMJ was vacated.

8.  On 2 March 1987, after consulting with legal counsel, the applicant
voluntarily requested a discharge under the provisions of Army Regulation
635-200, chapter 10 for the good of the service in lieu of trial by court-
martial.  He was advised that by submitting this request for discharge he
acknowledged that he understood the elements of the offenses charged and
was guilty of the charges against him or of a lesser included offense
therein contained which also authorized the imposition of a bad conduct or
dishonorable discharge.  He also stated that under no circumstances did he
desire further rehabilitation for he had no desire to perform further
military service.  The applicant was advised of the effects of a discharge
UOTHC and that he might be deprived of many or all Army and Veterans
Administration benefits.  He submitted no statement in his own behalf.

9.  On 18 March 1987, the applicant underwent a mental status evaluation.
He was found to have the mental capacity to understand and participate in
proceedings and to be mentally responsible.  He was cleared for any
administrative action deemed appropriate by his command.

10.  On 23 March 1987, the appropriate authority approved the applicant’s
request and directed he receive an undesirable discharge.

11.  On 31 March 1987, the applicant was discharged, in pay grade E-1,
under the provisions of Army Regulation 635-200, chapter 10, for the good
of the service with an undesirable discharge.  He had completed 2 years, 7
months, and 4 days of creditable active service and had no lost time.

12.  Army Regulation 635-200 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 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.  At the time, an
undesirable discharge was 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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

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.

DISCUSSION AND CONCLUSIONS:

1.   The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

2.  Although most of the applicant’s misconduct (failing to go to his
appointed place of duty) appears to have been relatively minor he did have
one instance of wrongfully using marijuana.  That serious misconduct,
combined with the multiplicity of his other instances of minor misconduct,
appears to have resulted in an appropriate determination by the separation
authority that his service should have been characterized as under other
than honorable conditions.

3.  The applicant’s good post-service conduct is commendable.  However,
that factor does not warrant upgrading his discharge to either fully
honorable or to general under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__tap___  __ena___  __pms___  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.




                                  __Thomas A. Pagan___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070004777                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070913                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19870331                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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