RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070006918 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Scott W. Faught

Member

Mr. Roland S. Venable

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 undesirable discharge (UD), characterized as under other than honorable conditions (UOTHC), be upgraded.

2.  The applicant states, in effect, that he was told that if he resigned from the service he would get a general discharge. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.

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 record shows he enlisted in the Regular Army on 13 July 1967.  The applicant successfully completed basic combat training at Fort Polk, Louisiana, and advanced individual training at Fort Leonard Wood, Missouri.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 62A, Engineer Equipment Assistant.  He was promoted to pay grade E-3 on 23 February 1968.

3.  Item 44 (Time Lost), of the applicant's DA Form 20 (Enlisted Qualification Record), shows that he was absent without leave (AWOL) from 16 October 1967 to 28 October 1967 (13 days) and from 1 February 1969 to 18 September 1970 (594 days). 

4.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy of his DD Form 214 which shows that on 31 December 1970, he was discharged, in pay grade of E-1, under the provisions 

of Army Regulation 635-200, chapter 10, for the good of the service.  He was furnished an UD, with his service characterized as UOTHC.  He had a total of 1 year, 9 months, and 11 days of creditable service and 607 days time lost.

5.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

6.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate. 

7.  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.

8.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review. 

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  It is apparent that his discharge was based on his several incidents of misconduct, which included being AWOL on two occasions consisting of a total of 607 days.  Therefore, there is an insufficient basis to support his request for an upgrade of his UD.

4.  There is no evidence in the applicant's records, and the applicant has provided none, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

5.  The applicant alleges, in effect, that he was told that if he resigned from service he would get a general discharge; however, there is no evidence, and he has provided none, to support his allegation.

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS__  __RSV___  __SWF__  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.




_____Linda D. Simmons______
          CHAIRPERSON




INDEX

CASE ID
AR20070006918
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071025
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19701231
DISCHARGE AUTHORITY
AR 635-200, chapt 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.