RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 18 September 2007
DOCKET NUMBER: AR20070005880
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.
2. The applicant states, in effect, that he had been honorably discharged twice prior to his last discharge and served his country faithfully for eight years.
3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 29 September 1988 and a DD Form
293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).
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 applicants 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 applicants 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 5 September 1979 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).
3. The applicant was honorably discharged on 28 February 1983 and immediately reenlisted on 1 March 1983. On 27 March 1985, he was honorably discharged and immediately reenlisted on 28 March 1985 for a 4-year term of service.
4. Evidence of record shows that the applicant was absent without leave (AWOL) for the period 23 May 1987 through 21 July 1988.
5. The court-martial charge sheet is not available.
6. The applicant's request for discharge for the good of the service packet is not available.
7. 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 29 September 1988 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of "FOR THE GOOD OF THE SERVICE-IN LIEU OF COURT-MARTIAL" with a characterization of service of under other than honorable conditions. The applicant completed 2 years, 4 months, and 4 days of creditable active service during his last enlistment with 428 days of lost time due to AWOL.
8. 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.
9. 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 members 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.
10. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicants prior honorable discharges are noteworthy and recognized in item 18 (Remarks) of his DD Form 214.
.
2. The applicant's records show that he had one instance of a lengthy AWOL. He had completed 2 years, 4 months, and 4 days of service on his 4-year term of service before his separation with a total of 428 days of lost time due to being AWOL.
3. 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 applicants 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 or honorable 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
AR20070005880
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.
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