RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 November 2007
	DOCKET NUMBER:  AR20070007777 


	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. Barbara J. Ellis

Chairperson

Mr. Jose A. Martinez

Member

Mr. Chester A. Damian

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 former service member (FSM) requests, in effect, that his discharge be upgraded to a discharge under honorable conditions. 

2.  The FSM states, in effect, that he was approved for a discharge under honorable conditions.  The FSM states, in effect, that he has been a good citizen and admits that he made a mistake by going absent without leave (AWOL) after returning from the Republic of Vietnam (RVN).  

3.  The FSM submitted a copy of his DD Form 214 and two character references 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 FSM's DD Form 214 (Certificate of Release or Discharge From Active Duty) shows that he enlisted in the Regular Army on 30 March 1970, for a period of three years.  He completed the required training and was awarded military occupational specialty (MOS) 94B (Cook).  The highest rank he attained while serving on active duty was Specialist (E-4).

3.  The FSM's Enlisted Qualification Record (DA Form 20) shows that he served two tours in the Republic of Vietnam (RVN).  The first tour was from 
28 August 1970 to 13 January 1971, and during this tour he was assigned to the 1st Battalion, 44th Artillery Regiment performing duties in MOS 94B, Cook.  His second tour was from 25 January 1972 to 25 June 1972 and during this tour he was assigned to the 3rd Brigade, 1st Cavalry Division performing duties in MOS 94B, Cook.  

4.  On 18 December 1970, the FSM accepted nonjudicial punishment (NJP) for failure to obey a lawful general regulation by being in an off-limits area.  His imposed punishment was a forfeiture of $25.00 pay, suspended for a period of 
30 days.   

5.  On 5 April 1972, the FSM accepted NJP for assaulting a Vietnam Nationalist, by slapping her with his hand.  His imposed punishment was a forfeiture of $40.00 pay. 

6.  On 6 March 1973, court-martial charges were preferred against the FSM for being AWOL from 24 August 1972 to 1 March 1973. 

7.  On 20 March 1973, the FSM requested discharge for the good of the service in accordance with Army Regulation 635-200, Chapter 10 due to family problems and his belief that he could not be rehabilitated because of his problems.  

8.  On 23 March 1973, the FSM consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of an undesirable discharge (UD) and of the rights available to him.  The FSM voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  He acknowledged that 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 FSM further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a UD.  The FSM did not submit a statement in his own behalf.  

9.  On 27 March 1973, the FSM’s unit commander recommended disapproval of the discharge for the good of the service and recommended discharging the applicant in accordance with Army Regulation 635-200, Chapter 6, if the family problems were documented.  His battalion commander also recommended disapproval and recommended that the applicant be given the opportunity to demonstrate that he could successfully complete his tour of duty.

10.  On 28 March 1973, the FSM was convicted by a Special Court-Martial of one specification of being AWOL from 24 August 1972 to 1 March 1973.  He was sentenced to confinement at hard labor for 2 months. 

11.  On 17 April 1973, the Commanding General ultimately approved the FSM’s request for discharge and directed that he be issued a UD.  
12.  On 18 April 1973, the FSM was discharged.  The separation document (DD Form 214) he was issued confirms he completed 2 years, 4 months and 
11 days of creditable active military service with 248 days loss due to being AWOL.  

13.  There is no indication that the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

15.  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.

16.  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.

17.  Army Regulation 635-200, paragraph 3-7c, defines an under other than honorable conditions discharge.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  When authorized, it is issued to a Soldier for misconduct or in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The FSM’s contention that he was originally approved for a general discharge was carefully considered and found to be without merit.  There is no evidence in the FSM’s military record nor has there been any evidence provided to support the allegation.  

2. The evidence of record show that the FSM’s unit commander and his battalion commander recommended disapproval of the applicant’s request for discharge. However, ultimately the Commanding General approved the applicant’s request for discharge which was in his authority to do so.  Therefore, given the circumstances in this case and his overall undistinguished record of service, there is insufficient evidence to support his request at this time.  

2.  The FSM’s good character and post service conduct is admirable; however, this factor alone is not sufficiently mitigating to warrant an upgrade of his discharge.   

3.  The evidence of record confirms that the FSM was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army for the Good of the Service.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process and his discharge accurately reflects his overall record of service.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__BJE___  __JAM __  ___CAD_  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 record of the individual concerned.




    __  Barbara J. Ellis_____
          CHAIRPERSON





INDEX

CASE ID
AR20070007777
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/11/08
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.