RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070006579 


	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. Loretta D. Gulley

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Carmen Duncan

Member

Mr. Qawiy A. 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 that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge under honorable conditions. 

2.  The applicant states, in effect, that his discharge was too harsh for the period he was absent without leave (AWOL).  He also states, in effect, that he returned from Germany to have surgery and since there was a waiting list, he was authorized 30 days leave but did not return on time.  Finally, he states that when he turned himself in, he did not want to go back to Germany so he accepted a UOTHC discharge.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge From Active Duty). 

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 21 June 1979, for a period of three years.  He completed the required training and was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank he attained while serving on active duty was Private (E-2).

3.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.





4.  On 14 May 1980, court-martial charges were preferred against the applicant for being AWOL from 5 April 1980 to 11 May 1980.

5.  On 16 May 1980, 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.  The applicant indicated that he would be submitting a statement on his behalf; however, there are no statements in the available discharge facts and circumstances.

6.  In his request for discharge, the applicant indicated 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.  The applicant also declined a separation physical examination. 

7.  On 26 July 1980, the separation authority directed that the applicant be separated under the provisions of paragraph 10, Army Regulation 635-200, for the good of the Army and that he receive an Undesirable Discharge Certificate.  On 13 August 1980, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation From Active Duty) issued to him at the time, confirms the applicant completed a total of 1 year and 17 days of creditable active military service with 90 days of lost time due to being AWOL.

8.  On 6 September 1986, the Army Discharge Review Board denied the applicant's petition for an upgrade his discharge.

9.  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.  An undesirable discharge is normally considered appropriate.

10.  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.

11.  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 contention of the applicant was carefully considered and found to be without merit. 

2.  The evidence of record shows that the applicant accepted discharge in lieu of court martial.

3.  Based on his disciplinary record, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or general discharge.

4.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

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


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS___  ___CD__  __QAS __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




____ Linda D. Simmons ___
          CHAIRPERSON





INDEX

CASE ID
AR20070006579
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/11/14
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.