RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 November 2007
	DOCKET NUMBER:  AR20070007893 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. Flynn

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 undesirable discharge, characterized as under other than honorable conditions, be upgraded to a general discharge. 

2.  The applicant states, in effect, that he would like for his undesirable discharge to be upgraded to a general discharge because of family illness.  He states that an upgrade to his discharge would restore his sanity, and help him to regain independence and adjust back into society. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), three written statements, and two letters from St. Mark's Place Institute for Mental Health, Incorporated.  The letters from St. Mark's Place Institute for Mental Health, Incorporated and the written statements attests to the applicant's character, his mental stability and his abstinence from illegal drugs.

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 military service records show that he was inducted into the Army of the United States on 13 April 1970.  He completed the necessary training and was awarded the military occupational specialty (MOS) 95C (Corrections Specialist).  He served in the Republic of Vietnam from  
21 December 1970 to 13 June 1971.

3.  His military service records show that he departed absent without leave (AWOL) during the periods 25 August to 13 September 1971; 26 November  
1971 to 20 February 1973; 31 March to 2 April 1973; and 4 June to 11 June 1973.

4.  On 22 February 1973, charges were preferred against the applicant for being AWOL during the periods 26 November 1971 to 20 February 1973.

5.  On 14 June 1973, charges were again preferred against the applicant for being AWOL during the period 4 June to 12 June 1973.

6.  On 21 June 1973, 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 undesirable 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, under the provision of Army Regulation 635-200 (Personnel Separation), chapter 10, 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 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.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Undesirable Discharge.  The applicant further understood that to accept an undesirable discharge with expectation that it will later be changed to a general or honorable discharge the likelihood of that ever occurring is extremely remote.

8.  The applicant submitted a statement in his own behalf.  In his statement, he stated, in effect, he received a large amount of harassment after working for a short period of time as a Military Policeman (MP).  He states that the incident started when he gave a traffic citation to a young lady for running a red light who was the daughter of a general officer.  He further states that he was relieved from his duties as a MP due to the incident involving the traffic citation.  The applicant added that after that incident, he got word that his mother's high blood pressure and heart trouble had gotten worse, and she needed his help.

9.  On 21 June 1973, the applicant's commander forwarded his recommendation for separation to the approving authority.  On 9 July 1973, the approving authority approved the applicant's request and directed the applicant be furnished an Undesirable Discharge Certificate and to be reduced to the lowest enlisted grade.

10.  On 19 July 1973, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 1 year, 11 months, and 13 days of creditable active military service and that he accrued a total of 479 days of time lost due to AWOL.

11.  The applicant applied to the Army Discharge Review Board (ADRB) on 
12 December 1975 and 25 November 1977.  On 8 June 1979, the ADRB reviewed the applicant's record and determined that his discharge was proper and equitable and denied relief.

12.  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.

13.  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.

14.  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 applicant requested that his undesirable discharge be upgraded to a general discharge.




2.  Evidence shows the applicant was AWOL during the periods 25 August to  
13 September 1971; 26 November 1971 to 20 February 1973; 31 March to  
2 April 1973; and 4 June to 11 June 1973.  As such, an undesirable discharge was equitable and proper.

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

4.  The applicant's statement that his discharge should be upgraded because of family illness, to restore his sanity, to regain his independence, and so he can adjust back into society is noted.  However, his statement is not sufficient to warrant a change to a properly issued discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___klw __  ____mjf__  ____lmd _  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.




__________Kenneth L. Wright_______
          CHAIRPERSON




INDEX

CASE ID
AR20070007893
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071106
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
 DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.