RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 October 2007
	DOCKET NUMBER:  AR20070008757 


	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. Michael L. Engle

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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he is a 61 year old veteran in poor health and unable to work and maintain the proper medical insurance needed to cover his health issues.  As a result, he has applied to the Department of Veterans Affairs (VA) for medical treatment and compensation.  The applicant further states that he enlisted in the Regular Army four times and served with honor and dignity as evidenced by his receipt of the National Defense Service Medal, Purple Heart, Combat Infantryman Badge, Vietnam Service Medal with three bronze service stars, and foreign awards for service in the Republic of Vietnam.  He feels that his discharge is unfair even though he knows that he made a bad decision under the duress of a death in the family.  He had clearly regretted that decision and turned himself in to the military authorities.  During the 2 years that he was absent without leave (AWOL) he was in a VA hospital recuperating from an accident.    

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).

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.  On 11 February 1966, the applicant enlisted in the Regular Army.  He attained the rank of specialist four (pay grade E-4) and was honorably discharged on 
7 February 1969.



3.  On 9 June 1970, the applicant again enlisted in the Regular Army for 3 years, beginning in the rank of specialist four (pay grade E-4) and served through a series of reenlistments and assignments.  He was awarded military occupational specialty 36C3O (Wire Systems Installer/Operator). 

4.  On 1 April 1972, the applicant was promoted to the rank of sergeant (pay grade E-5). 

5.  On 23 January 1973, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL for 1 day.  The punishment included a forfeiture of $107.00 pay per month for 1 month (suspended).

6.  On 8 March 1973, the applicant accepted NJP for failing to go to his appointed place of duty.  The punishment included a forfeiture of $50.00 pay per month for 1 month (suspended).

7.  On 27 March 1974, the applicant accepted NJP for dereliction of duty.   The punishment included a reduction to specialist four (pay grade E-4) suspended.

8.  On 13 July 1977, the applicant was promoted to the rank of staff sergeant (pay grade E6). 

9.  On 4 October 1984, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 23 August 1982 to on or about 28 September 1984.

10.  The discharge packet is not available in his military records.  However, his DD Form 214 shows that he was administratively discharged on 25 October 1984, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service – in lieu of court-martial.  His service was characterized as under other than honorable conditions.  He had completed a total of 15 years, 3 months, and 9 days of creditable active duty and had 765 days of lost time due to AWOL.

11.  The applicant's DD Form 214 indicates that he had served overseas for more than 4 years.  He served in three campaign periods in the Republic of Vietnam and was awarded the Purple Heart and Combat Infantryman Badge.




12.  On 28 January 1987, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

13.  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.

14.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a punitive discharge and confinement for 
1 year.

DISCUSSION AND CONCLUSIONS:

1.   In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  The applicant’s honorable service, to include his combat service in the Republic of Vietnam, has been noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service. 

3.   Notwithstanding the applicant's assertion that his discharge is unjust, there is no available evidence to show that he had any mitigating circumstances or that his AWOL was a reasonable solution to them.  

4.  In order to justify correction of a military record the applicant 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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ LDS__  ___RSV _  _SWF___  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 records of the individual concerned.




__   _Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20070008757
SUFFIX

RECON
 
DATE BOARDED
20071025 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19841025
DISCHARGE AUTHORITY
AR 635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.