RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 8 November 2007 
	DOCKET NUMBER:  AR20070009983 


	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. Phyllis B. Mackey 

Analyst

The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Mr. Jose A. Martinez 

Member

Mr. Chester A. Damian

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, to have his undesirable discharge (UD), characterized as under other than honorable conditions (UOTHC) be changed to an honorable or general (under honorable conditions).  He also requests, in effect, to have his rank reinstated to E4, the rank he held before being reduced at the time of his discharge. 

2.  The applicant states, in effect, that he is trying to apply for compensation benefits which he feels he is entitled to receive since he fought for his country.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 5 May 1972, in support of his request.

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 record shows he entered active duty on 2 August 1968.  The applicant successfully completed basic combat training at Fort Knox, Kentucky, and advanced individual training (AIT) at Fort Leonard Wood, Missouri.  On completion of his training, he was awarded the military occupational specialty (MOS), 63B, Wheel Vehicle Mechanic.  He continued to serve until he was discharged on 6 July 1969, for immediate reenlistment.   

3.  The applicant reenlisted on 7 July 1969.  He was promoted to specialist four (SP4/E-4) on 19 August 1969.  

4.  On 9 May 1970, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for failing to obey a lawful general order, to wit:  being in an off limits area.  His punishment consisted of reduction to PFC/E3, suspended for sixty days; forfeiture of $30.00 (per month for one month); and fourteen days of extra duty.  He did not appeal this punishment.

5.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows that he was AWOL from 18 July 1971 to 13 February 1972 (211 days).  Charges were preferred against the applicant on 15 February 1972 for being AWOL.   He was pending a court-martial for violation of Article 86, UCMJ; which is punishable by a Bad Conduct or a Dishonorable Discharge. 

6.  On 4 April 1972, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if an undesirable discharge were issued.  He waived his rights and elected not to submit a statement in his own behalf. 

7.  On 25 April 1972, the separation authority approved the applicant's request for discharge and directed that he be furnished an Undesirable Discharge Certificate.  

8.  On 1 May 1972, the applicant was reduced in rank to Private (PV1/E1) as directed by Special Orders Number 122, published by Headquarters, US Army Training Center, Infantry and Fort Dix, Fort Dix, New Jersey.
 
9.  The applicant was discharged on 5 May 1972, in the pay grade of E-1.  He had a total of 3 years, 2 months, and 2 days of creditable service and 211 days of lost time due to AWOL.

10.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate.  

11.  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.

12.  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, 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  

2.  The evidence shows that the applicant was advanced to pay grade E-4, effective 19 August 1969.  He received an Article 15, under UCMJ, on 
15 February 1972, for being AWOL from 18 July 1971 to 13 February 1972.   He was reduced in rank to Private/PV1 as a result of this action.  

3.  The applicant has provided insufficient evidence to show that neither his discharge nor his reduction in rank were unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant’s contentions were considered; however, they do not support an upgrade of his undesirable discharge, with his service characterized as UOTHC. 

5.  The evidence of record shows that the applicant accumulated a total of 
211 days of lost time due to AWOL.  An absence of this duration is serious and there is insufficient evidence to show that he now deserves an upgrade of his discharge.  

6.  The Board does not change the characters of service for the purpose of enabling former service members to obtain eligibility for benefits.  The Board has no authority to direct the VA to award benefits.  Since most VA benefits are based on an individual's service, eligibility depends on the circumstances.  The evidence of record clearly shows the applicant's first period of service was honorable and that he may be entitled to some VA benefits; however, he must contact his nearest VA representative for further assistance regarding VA benefits. 
 
7.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JAM__ __CAD___  __BJE__   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.




____Barbara J. Ellis_______
          CHAIRPERSON




INDEX

CASE ID
AR20070009983
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071108
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR 635-200  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.