RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 August 2007
	DOCKET NUMBER:  AR20070006112 


	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. Bernard P. Ingold

Chairperson

Mr. Thomas M. Ray

Member

Mr. Gerald J. Purcell

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 displayed poor judgment during his military service and that he has lived with the consequences of his actions for the past 32 years. 

3.  The applicant did not provide any additional documentation in support of 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's records show that he enlisted in the Regular Army on 8 April 1974 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded primary occupational specialty (MOS) 12B (Combat Engineer).  The highest rank the applicant attained while serving on active duty was private/pay grade E-2.

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

4.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 (Personal Qualification Record) shows the following “absent without leave (AWOL)” entries:

a.  1 May 1974 through 2 May 1974				2 days

b.  12 September 1974 through 2 October 1974		21 days

c.  17 October 1974 through 23 October 1974			7 days

d.   20 November 1974 through 19 December 1974 		29 days

5.  On 18 November 1974, the applicant’s immediate commander forwarded a memorandum to the applicant's battalion commander requesting a special court-martial to try the applicant for being AWOL during the period on or about 12 September 1974 through on or about 3 October 1974 and during the period on or about 31 October 1974 through on or about 18 November 1974. 

6.  On 18 November 1974, charges were preferred against the applicant for being AWOL during the period on or about 12 September 1974 through on or about 3 October 1974 and on or about 17 October 1974 through on or about 18 November 1974.

7.  On 23 December 1974, 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 Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200.

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 of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood that if the 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 elected to submit a statement on his own behalf.

9.  In an undated, self-authored statement, the applicant admitted guilt to 3 charges of AWOL and requested separation under chapter 10 of Army Regulation 635-200 in lieu of a court-martial.  He further stated that he understood he could receive an undesirable discharge and that this type of discharge would affect his State, Federal, Army, and Veterans administration benefits.

10.  On 23 December 1974, the applicant’s intermediate commander recommended approval of the applicant’s discharge for the good of the service and that the applicant is furnished an Undesirable Discharge Certificate.

11.  On 23 December 1974, the separation authority approved the applicant's request for discharge and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 5 February 1975, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 5 months and 25 days of creditable active military service and 121 days of lost time.

12.  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, 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.

13.  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.

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.


2.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant 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.

3.  The applicant's record of service shows that he was charged with several counts of AWOL.  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 or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__bpi___  __tmr___  __gjp___  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.



							Bernard P. Ingold
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070006112
SUFFIX

RECON

DATE BOARDED
20070830
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19750205
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.