RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 November 2007
	DOCKET NUMBER:  AR20070009355 


	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:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry C. Bergquist

Member

Mr. Dale E. DeBruler

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 of his discharge. 

2.  The applicant states that his discharge was too harsh.

3.  The applicant provides the following additional documentary evidence in support of his application.

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 14 June 1973.

	b.  Certificate of Commission as a Kentucky Colonel, dated 18 March 1996.

	c.  Governor of Kentucky Outstanding Service in Crime Prevention, dated 24 August 1978.

	d.  Certificate of Honorary County Judge Executive, dated 19 July 1978.

	e.  Certificates of Commission as an Honorary Deputy Sheriff, Commonwealth of Kentucky, dated 2 September 1977 and 6 January 1978.

	f.  Certificates of Training, State of Tennessee, Basic Firefighting I, II, and III, dated 6 September 1990, 21 September 1990, and 27 January 1991.

	g.  Certificate of Training, Central Kentucky Firefighter’s Association Annual Fire School, dated 30 July 1977.

	h.  Certificate of Achievement, Emergency Medical Technician-Ambulance, dated 20 June 1980.

	i.  State of Kentucky High School Equivalency, dated 10 August 1978.

	j.  Ohio Peace Officer Training Council, Basic Training Program, 20 June 1980.

	k.  Police Record Check, dated 10 March 1992.

	l.  Resume.


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 he enlisted in the Regular Army on 9 February 1971 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11E (Armored Crewman).  The highest rank he attained while serving on active duty was private first class/pay grade E-3.

3.  The applicant's records do not show any significant acts of valor during his military service.

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code) of the applicant DA Form 20 (Enlisted Qualification Record) shows the applicant was reported absent without leave (AWOL) during the periods 21 March 1972 through 2 April 1972; 6 May 1972 through 9 May 1972; 22 May 1972 through 2 June 1972; 12 June 1972 through 23 June 1972; 24 July 1972 through 7 August 1972; 15 November 1972 through 19 November 1972; and 11 December 1972 through 16 May 1973.  He was also reported confined during the periods 3 June 1972 through 6 June 1972; 7 June 1972 through 8 June 1972; 24 June 1972 through 27 June 1972; 28 June 1972 through 17 July 1972; 8 August 1972 through 8 August 1972; 11 August 1972 through 27 August 1972; and 28 August 1972 through 19 October 1972.

5.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 14 March 1972, for being AWOL during the period on or about 28 February 1972 through on or about 14 March 1972.  His punishment consisted of forfeiture of seven days pay for one month and 14 days of extra duty.

6.  On 21 August 1972, the applicant pled guilty at a Special Court-Martial to 5 specifications of AWOL during the period on or about 21 March 1972 through on or about 3 April 1972; on or about 6 May 1972 through on or about 10 May 1972; on or about 22 May 1972 through on or about 3 June 1972; on or about 12 June 1972 through on or about 24 June 1972; and on or about 24 July 1972 through on or about 8 August 1972.  The Court sentenced the applicant to confinement at hard labor for 65 days and reduction to the grade of private/pay grade E-1.

7.  On 23 May 1973, Court-Martial charges were preferred against applicant for being AWOL on or about 15 November 1972 through on or about 20 November 1972 and on or about 21 November 1972 through on or about 17 May 1973.

8.  On 1 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.  Following consultation with legal counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).

9.  On 4 June 1973, the intermediate commander recommended approval of the applicant’s separation and stated that any punishment was expected to have minimal rehabilitative effect on the applicant and no benefit to the Army or society.

10.  On 6 June 1973, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  On 14 June 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged under chapter 10 of Army Regulation 635-200 and completed a total of 1 year, 5 months, and 2 days of creditable active military service with 339 days of lost time due to AWOL and confinement.

11.  On 17 January 1978 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12.  The applicant submitted several certificates of training and/or achievement in recognition of his public service in law enforcement and support of firefighting efforts.

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.  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.

15.  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 post service support to law enforcement and firefighting efforts as evidenced by his certificates of achievement and training are noted.

3.  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.

4.  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.  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

__mkp___  __lcb___  __ded___  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.




						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009355
SUFFIX

RECON

DATE BOARDED
20071115
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19730614
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.