RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  28 August 2007
	DOCKET NUMBER:  AR20070005281 


	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

Mr. Mohammed R. Elhaj

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 that his discharge be upgraded.

2.  The applicant did not state a reason for his request.

3.  The applicant provided copies of two Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) dated 1 November 2006 and 29 March 2007 respectively in support of this application.  He also submitted an undated statement form his mother, W____G_____.  These statements provide, in effect, that the applicant was suffering from emotional difficulties and suicidal thoughts at the time of his discharge. 

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 records show he enlisted in the Regular Army on 19 December 1969 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 43E (Parachute Rigger).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

3.  The applicant’s records show he was awarded the National Defense Service Medal and the Parachutist Badge.  The applicant's records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 13 May 1970, for failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of $20 pay for 1 month and 14 days of restriction.

	b.  On 12 February 1970, for being absent without leave (AWOL) from on or about 9 through 12 February 1970.  His punishment consisted of a forfeiture of $26 pay for 1 month, and 14 days of restriction, and extra duty.

	c.  On 11 December 1970, for being AWOL from on or about 7 through 
10 December 1970.  His punishment consisted of reduction to the grade of private/pay grade E-2, a forfeiture of $32 pay for 1 month, and 14 days of restriction, and extra duty.

	d.  On 9 June 1971, for being AWOL from on or about 31 May through on or about 7 June 1971.  His punishment consisted of 14 days of extra duty.

	e.  On 22 July 1971 for being AWOL from 19 through 20 July 1971.  His punishment consisted of a forfeiture of $25 pay for 1 month.

	f.  On 3 November 1971 for being AWOL from on or about 12 October through 1 November 1971.  His punishment consisted of a forfeiture of $50 pay for 2 months, reduction to the grade of private first class/pay grade E-3, and 
30 days of extra duty.

5.  On 7 April 1972, charges were preferred against the applicant for being AWOL from on or about 11 through 29 November 1971 and from on or about
21 December 1971 through 28 March 1972.

6.  On 14 April 1972, 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 an under other than honorable conditions 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, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separation) in lieu of trial by court-martial. 

7.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of 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.  The applicant submitted a statement explaining his family and financial challenges and that he was fed up with the Army and the treatment of Soldiers.

8.  On 14 April 1972, the applicant's immediate commander recommended disapproval of the applicant’s request for discharge.  He recommended trial by special court-martial, instead, due to the applicant's AWOL record.  However, the intermediate commander recommended approval of the request for discharge and that the applicant be furnished an Undesirable Discharge Certificate. 

9.  On 3 May 1972, the separation authority approved the applicant’s request for discharge and directed that he receive an Undesirable Discharge Certificate as well as reducing him to the lowest enlisted grade.  On 4 May 1972, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 1 year, 11 months, and 23 days of creditable active military service and 176 days of lost time.

10.  On 10 March 1977 and 31 October 1979, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

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.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7, 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 3-7, 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 contends that his undesirable discharge should be upgraded.

2.  The statements provided on the applicant’s behalf regarding his emotional state at the time of his discharge were carefully considered.  However, they do not sufficiently mitigate the indiscipline that prompted his discharge.

3.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  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.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general discharge or an honorable discharge.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 10 March 1977.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__pms___  __reb___  __rch___  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 be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.





							Paul M. Smith
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070005261
SUFFIX

RECON

DATE BOARDED
20070828
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19720504
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.