RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 September 2007
	DOCKET NUMBER:  AR20070007401 


	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. Jeffrey C. Redmann

Chairperson

Mr. Dean A. Camarella

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, in effect, an upgrade of discharge to honorable.

2.  The applicant states that his life has changed for the better since his discharge and that an upgrade would allow him to get on with his life, seek government employment, and put the past behind him.

3.  The applicant did not provide any additional documentary evidence 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 after an initial enlistment in the U.S. Army Reserve (USAR) and award of military occupational specialty (MOS) 13B (Cannon Crewman), the applicant enlisted in the Regular Army on 27 February 1980.  He later completed advanced individual training and was awarded MOS 75C (Personnel Management Specialist).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

3.  The applicant’s records show he was awarded the Army Service Ribbon, the Army Good Conduct Medal (2nd Award), the Overseas Service Ribbon, the Noncommissioned Officer Professional Development Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  The applicant's records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:
	a.  On 12 February 1985 for the wrongful use of marijuana on 
4 September 1985.  His punishment consisted of reduction to the grade of private/pay grade E-2, a forfeiture of $400 pay for 2 months, and confinement at a the Correctional Confinement Facility for 10 days at the earliest date possible.

	b.  On 3 June 1987 for failing to go to his appointed place of duty and for being derelict in the performance of his duties from 23 April 1987 to on or about 27 April 1987.  His punishment consisted of reduction to the grade of private first class/pay grade E-3 (suspended), a forfeiture of $204 pay for 1 month, 14 days of extra duty, and 14 days of restriction. 

5.  On 26 June 1987, the applicant's immediate commander formally counseled him and initiated a Bar to Reenlistment Certificate citing his unsuitability, dereliction of duty, and lack of potential for further service.  The immediate commander furnished the applicant a copy of the bar certificate.  The approval authority approved the bar to reenlistment on 27 August 1987.

6.  The applicant's records show that he was reported absent without (AWOL) leave on 7 March 1988.  Records further show that on 6 April 1988, the same date the applicant was dropped from the unit rolls (DFR), he surrendered to military authorities and was returned to military control.

7.  On 15 April 1988, charges were preferred against applicant for being AWOL during the period on or about 7 March 1988 through on or about 6 April 1988.  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.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial. 

8.  On 27 April 1988, the separation authority approved the applicant's request for discharge and directed that he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 14 June 1988, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed 8 years, 2 months, and 19 days of creditable active military service and he had 30 days of lost time.

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.  A discharge under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7, 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 3-7, 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 overall record of service shows that he was charged with being AWOL during the period 7 March 1988 through 6 April 1988.   Based on the applicant's 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

__jcr___  __dac___  __qas___  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.



							Jeffrey C. Redmann
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070007401
SUFFIX

RECON

DATE BOARDED
20070920
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19880614
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.