RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 September 2007
	DOCKET NUMBER:  AR20070005873 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Jeffrey Redmann

Chairperson

Mr. Dean Camarella

Member

Mr. Qawly Sabree

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

2.  The applicant states that he was discharged after being absent without leave (AWOL) during the period 6 June 1977 to 31 July 1977.  He states, in effect, that he got married during this period and contracted pneumonia.  He attempted to contact his unit first sergeant telephonically and left a message.  When he returned after recuperating from his illness, he writes he was not able to present his case for potential retention due to a reduction in force.

3.  The applicant did not provide any additional supporting documentation with 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 enlisted in the Regular Army on 22 January 1975.  He completed basic combat and advanced individual training and was awarded the military occupational specialty 13B (Cannoneer).  The highest rank he attained while serving on active duty was private first class/pay grade E3.

3.  The applicant's records do not show any significant acts of valor during his military service. 

4.   On 17 November 1976, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for AWOL during the period from 1 November 1976 to 8 November 1976.  The punishment imposed 
was forfeiture of $216.00 per month for 1 month, suspended for 60 days.  On 1 December 1976, the sentence was vacated and the unexecuted portion was duly executed.

5.  On 21 March 1977, the applicant accepted NJP under Article 15, UCMJ, for being AWOL during the period 26 February 1977 to on or about 1 March 1977.  The punishment imposed consisted of reduction to pay grade E-2 (suspended for sixty days) and forfeiture of $60.00 for one month.

6.   On 11 August 1977, court-martial charges were preferred against the applicant for being AWOL during the period from 6 June 1977 to on or about 
1 August 1977.

7.  On 25 August 1977, 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 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.

9.  On 22 September 1977, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial and directed that he receive an under other than honorable conditions discharge.  On 28 September 1977, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Service) the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under other than honorable conditions.  This form confirms that he completed a total of 2 years and 6 months of creditable active military service and his time lost under the provisions of Title 10, United States Code 972, was 66 days.


10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 12 January 1979, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative 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 in lieu of trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser-included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate

12.  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.

13.  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 contends that his discharge should be upgraded because during his extended absence he tried to contact his unit first sergeant by leaving a message with another unit Soldier.  The applicant further contends he did not know he was supposed to contact anyone else in his chain of command while he was absent.

2.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Records also show he had a history of punishments under the provisions of Article 15 of the UCMJ for AWOL.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

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

5.  The applicant’s record of service shows 66 days of time lost.  Therefore, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  As a result, the applicant is not entitled to an honorable discharge.

6.  In view of the applicant's length of time lost, his record of service is not satisfactory. Therefore, there is no basis to upgrade his discharge to a discharge under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JR____  __DC ___  ___QS __  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.




_____Jeffrey Redmann________
          CHAIRPERSON


INDEX

CASE ID
AR20070005873
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070920
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0100
2.

3.

4.

5.

6.