RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 September 2007
	DOCKET NUMBER:  AR20070005606 


	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 J. Fowler

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Ms. Laverne V. Berry

Member

Mr. Ronald D. Grant

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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that his discharge is not in error and that he is simply seeking to clear his name for his family and for himself.

3.  The applicant states that he provided a letter but it is not available.

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 enlisted in the Regular Army on 6 March 1979 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 05B (Radio Operator).  

3.  On 7 August 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 18 July 1979 through 26 July 1979. 

4.  On 15 October 1979, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 4 September 1979 through 24 September 1979.

5.  A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 
5 November 1979, shows the applicant was barred from reenlistment for receiving two Article 15s.  He did not desire to submit a statement on his own behalf.

6.  Evidence of record shows that the applicant was AWOL on 3 March 1980.

7.  On 3 June 1980, the applicant was convicted, pursuant with his plea, by a special court-martial of AWOL for the periods 10 March 1980 through 29 March 1980 and 1 April 1980 through 21 April 1980.  His sentence consisted of a forfeiture of $299.00 pay per month for 6 months and confinement at hard labor for 1 month.

8.  On 5 November 1980, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 25 August 1980 through 2 September 1980 and for three specifications of failing to be at his appointed place of duty.

9.  Evidence of record shows that the applicant was AWOL for the periods 
25 September 1980 through 9 October 1980 and 9 November 1980 through 
21 January 1981.  

10.  The court-martial charge sheet is not available.

11.  The applicant's request for discharge for the good of the service packet is not available.

12.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows that he was discharged on 1 April 1981 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of "Administrative discharge conduct triable by court-martial" with a characterization of service of under other than honorable conditions.  The applicant completed 
1 year, 5 months, and 8 days of creditable active service with 231 days of lost time due to AWOL.

13.  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, 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.

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 records show that he was convicted by one special court-martial, he received three Article 15s, he was barred from reenlistment, and he had eight instances of AWOL during his enlistment.  The applicant had completed 1 year, 5 months, and 8 days of creditable active service with 231 days lost due to AWOL and confinement.  

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JEA  _  __LVB   _  __RDG__  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.




___James E. Anderholm_
          CHAIRPERSON




INDEX

CASE ID
ARAR20070005606
SUFFIX

RECON

DATE BOARDED
18 SEPTEMBER 2007
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.0133.0000
2.
144.0000.0000
3.

4.

5.

6.