RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070006420 


	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:


Ms. Carmen Duncan

Chairperson

Mr. Chester A. Damian

Member

Mr. Ronald D. Gant

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 general.   

2.  The applicant states, in effect, that the agreement was to give him a general discharge in return for accepting a "chapter 10" discharge.  He further states that in the stipulations of his "chapter 10" discharge, it states, after 6 months of the date of his separation, the discharge automatically changes to "general under honorable conditions." 

3.  The applicant provides a copy of his Report of Separation from Active Duty (DD Form 214).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's discharge be upgraded to general, under honorable conditions.  Counsel further requests correction of the applicant's DD Form 214 to show award of the National Defense Service Medal. 

2.  Counsel states that the applicant admits to his offense but was led to believe that his discharge would be automatically upgraded within 6 months of his separation.  Counsel further requests that the Board consider clemency based on the nearly 30 years since his discharge.

3.  Counsel provides no additional documentation.

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 12 December 1977, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty 11C1O (Indirect Infantry Fireman).

3.  On 9 February 1978, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 17 to 23 January 1978.  The punishment included a forfeiture of $50.00 pay per month for 1 month and 14 days restriction and extra duty.

4.  On 30 March 1978, the applicant accepted NJP for AWOL from 13 to 
16 March 1978.  The punishment included reduction to private (pay grade E1), 15 days confinement in the Division Confinement Facility (suspended), and 
45 days extra duty.

5.  On 2 November 1978, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 9 June 1978 to on or about 24 October 1978.

6.  On 3 November 1978, 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. 

7.  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 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.   

8.  On 17 November 1978, the separation authority approved the applicant’s request for discharge and directed that he be issued a Discharge Certificate Under Other Than Honorable Conditions.  On 27 November 1978, the applicant was discharged accordingly.  He had completed a total of 11 months and 17days of creditable active military service and had accrued 152 days of time lost due to AWOL.
9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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.   Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days included a punitive discharge.

12.  Army Regulation 600-8-22 (Military Awards) as amended provides that the National Defense Service Medal is awarded for honorable active service for any period between 27 July 1950 through 27 July 1954, 1 January 1961 through 14 August 1974, 2 August 1990 through 30 November 1995 and 11 September 2001 to a date to be determined.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  

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

3.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.  The applicant has not provided any evidence to substantiate that he was promised, otherwise misled into believing that his discharge would be automatically upgraded.

4.  The applicant did not serve during a qualifying period for award of the National Defense Service Medal.

5.  In view of the above, the applicant's request should be denied.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ CD___  __RDG__  __CAD  _  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.





___    Carmen Duncan ____
          CHAIRPERSON




INDEX

CASE ID
AR20070006420
SUFFIX

RECON

DATE BOARDED
20071030UOTHC
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
 19781117
DISCHARGE AUTHORITY
AR .635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.