RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 September 2007
	DOCKET NUMBER:  AR20070005546 


	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. Michael L. Engle

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 be upgraded to honorable.

2.  The applicant states that he was treated unfairly by the Army officers.  He further states that he needs this upgrade to receive medical benefits for getting hurt while in basic training.  

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).

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.  On 17 May 1979, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 16P1O (Air Defense Artillery Short Range Missile Crewman).

3.  The applicant’s medical records show that he was treated on four occasions in July 1979 at the medical clinic on Fort Bliss, Texas for pain associated with his left eye.  In December 1979, he was treated at the battalion aid station at Fort Carson, Colorado, for chest pain, cough, dizziness and headache resulting from an automobile accident that occurred 2 months earlier.

4.  On 4 October 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for AWOL (absent without leave) from 20 to 28 September 1979.  The punishment included a forfeiture of $101.00 pay per month for 1 month, and 14 days extra duty.

5.  On 25 February 1980, the applicant accepted NJP for AWOL from 7 January to 5 February 1980.  The punishment included correctional custody for 30 days.  The applicant’s appeal was denied.

6.  On 19 June 1980, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, from 3 to 18 June 1980 and for twice failing to report; for violation of Article 90, for twice willfully disobeying lawful orders from a commissioned officer; for violation of Article 91, for being disrespectful in language towards his first sergeant; and for violation of Article 134, for communicating a threat (three times), breaking restriction, and being drunk on duty.

7.  On 4 July 1980, 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, in lieu of trial by court-martial. 

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or to 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.   

9.  On 25 July 1980, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 1 August 1980, the applicant was discharged accordingly.  He had completed 1 year and 22 days of creditable active military service and had accrued 34 days of time lost due to AWOL.

10.  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.
 
11.  On 28 April 1982 the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 90 or for his charges under Article 134 is a punitive discharge and confinement for 5 years or 3 years, respectively.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  There is no available evidence showing that he was treated unfairly by any Army officer or noncommissioned officer.

4.   The evidence of record shows that the applicant was given medical care on several occasions during the time of his initial training.  However, this does not support his implied contention that his illness or injury justifies an upgrade to his discharge.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

7.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 28 April 1982.  





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_TAP ___  __ENA__  __PMS __  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.




__    Thomas A. Pagan_____
          CHAIRPERSON




INDEX

CASE ID
AR20070005546
SUFFIX

RECON
 
DATE BOARDED
20070913
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800801
DISCHARGE AUTHORITY
AR 635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY 
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.