RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070009649 


	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

Ms. Eloise C. Prendergast

Member

Mr. James R. Hastie

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 understood at the time of his discharge that an other than honorable discharge meant a general with honorable.  He further states that he was accepted into the Department of Veterans Affairs (VA) assisted housing program.   However, if he does not get this upgrade to his discharge he will be released from the assisted housing program.  

3.  The applicant provides copies of his Certificate of Release or Discharge form Active Duty (DD Form 214), a letter from the Columbia River Mental Health Services, two letters from Share, and two letters from the VA. 

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 27 November 1978, the applicant enlisted in the Regular Army for 3 years. He completed his initial training and was awarded military occupational specialty 36K1O (Tactical Wire Operations Specialist).

3.  On 31 January 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for breaking restriction.  The punishment included a forfeiture of $50.00 pay per month for 
1 month, and 7 days restriction and extra duty.





4.  On 21 February 1979, the applicant accepted NJP for wrongful possession of an undetermined amount of marijuana.  The punishment included a forfeiture of $150.00 pay per month for 1 month (suspended) and 20 days extra duty and restriction.

5.  On 29 August 1979, the applicant accepted NJP for being absent without leave (AWOL) during the period from 5 to 12 July 1979.   The punishment included reduction to private, pay grade E-1; a forfeiture of $97.00 pay per month for 1 month; and 14 days restriction and extra duty.

6.  On 7 December 1979, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from 29 June to 3 July 1979; and again from 12 October 1979 to an undetermined date.

7.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 11 February 1980, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service.  His service was characterized as under other than honorable conditions. He had completed 9 months and 22 days of creditable active duty and had 
103 days of lost time due to AWOL and confinement.

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

9.  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.

10.   Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days includes 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 current situation is understandably difficult.  However, it does not provide a justification for upgrading his discharge. 

3.  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.

4.  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

___JRH _  __ECP __  __LDS   _  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
AR20070009649
SUFFIX

RECON
 
DATE BOARDED
20071204 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800211
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.