RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 November 2007
	DOCKET NUMBER:  AR20070007995 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Kenneth Wright

Chairperson

Ms. LaVerne Douglas

Member

Mr. Michael 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 an upgrade to his discharge. 

2.  The applicant states, in effect, that he made a mistake and that he would like to have a general discharge.

3.  The applicant provides a self-authored statement, three personal character witness statements and a Department of Veterans Affairs internal form showing the local office assisted the applicant with the preparation of his application for correction of his military records.

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 records show he enlisted on 27 September 1974 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 55B (Ammunition Storage Specialist).  He was promoted to private/pay grade E-2 effective 27 January 1975.

3.  On 25 June 1975, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for damage to a government vehicle and for disorderly conduct in a public place.  The punishment imposed consisted of forfeiture of $75.00 per month for 2 months and reduction to private/E-1 suspended for 45 days.

4.  On 2 July 1975, DA Form 3825 (Notice of Unauthorized Absence from the United States Army) shows the applicant was reported absent without authority (AWOL) from Troop B, 7th Squadron, Ist Cavalry located at Fort Knox, Kentucky. 

5.  On 31 July 1975, the applicant was dropped from the rolls (DFR). 

6.  On 19 September 1975, Special Orders Number 262 published by Headquarters, US Army Training Center and Fort Dix, shows the applicant was returned to military control by the military police at Fort Hamilton, New York.  The applicant's duty status was changed from DFR to present for duty with an effective date of 11 September 1975.

7.  On 4 September 1975, court-martial charges were preferred against the applicant for being AWOL on 2 July 1975 from his unit Troop B, 7th Squadron, 1st Cavalry, Fort Knox, Kentucky. 

8.  The applicant's separation processing packet was not available for review.

9.  The facts and circumstances pertaining to the applicant’s discharge are not on file.

10.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued at the time of his discharge on 22 October 1975 confirms he was discharged and issued an Undesirable Discharge Certificate and that he completed a total of 10 months and 17 days of creditable active military service.  He had 71 days time lost under the provisions of Title 10, United States Code, Section 972.

11.  The applicant submitted a self-authored statement which states, in effect, that he was home on ordinary leave from his military unit and that his girlfriend became pregnant with his child, then she miscarried and he remained home with her to provide her comfort.  He further states he has had health problems recently and would like his discharge upgraded. 

12.  The applicant provided three character witness statements which states, in effect, that he is a good citizen, that he pays his bills on time, and that he provides quality home repairs as his form of self-employment. 

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

14.  Chapter 10 of Army Regulation 635-200 (Personnel Separation), provides that the applicant must have indicated that he understood that by requesting a discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He must have 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.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, which 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.  At the time, an undesirable discharge was normally considered appropriate.

16.  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.

17.  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 contends that he made a mistake and 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.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  
3.  The applicant’s record of service shows 71 days of time lost.  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.  As a result, the applicant is not entitled to an honorable discharge.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KW ___  __LD ___  __MF ___  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 Wright________
          CHAIRPERSON




INDEX

CASE ID
AR20070007995
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.
144.7000
2.

3.

4.

5.

6.