RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070010340 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Rose M. Lys

Member

Mr. Edward E. Montgomery

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 that his discharge under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states that, after basic training, he returned home for his father’s funeral.  He returned to Fort Benning, GA to begin Jump School.  He had been waiting his whole life to become a Green Beret, but something happened to his emotional and mental capacity.  He quit.  He still hates himself for the disgrace he brought upon himself.  He went home until he was picked up.  He did not try to run or hide, but he just did not care.  His level of maturity did not match his level of commitment.  He needs help with the guilt he carries.

3.  The applicant provides no additional evidence.

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 was born on 21 July 1963.  He enlisted in the U. S. Army Reserve on 25 July 1980.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 36K (Tactical Wire Operator Specialist).  He enlisted in the Regular Army on 14 January 1982. He completed training and was awarded MOS 11B (Infantryman).

3.  On 14 October 1982, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for disobeying a lawful command.  The punishment imposed was a forfeiture of $178.00 pay for 7 days and 10 days extra duty.  

4.  On 14 April 1983, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from on or about             18 October 1982 until on or about 31 March 1983.  
5.  On or about 11 April 1983, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf 

6.  On 27 April 1983, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

7.  On 17 May 1983, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with a discharge UOTHC.  He had completed a total of 1 year and 2 months of creditable active service and had 154 days of lost time.

8.  Army Regulation 635-200 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 trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  

9.  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.  

10.  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.  It is acknowledged that the applicant was young, just days over 17 years old when he enlisted in the U. S. Army Reserve and about 18 and 1/2 when he enlisted in the Regular Army.  However, he did complete basic training, advanced individual training, and further training in MOS 11B.  He knew what the Army’s standards of conduct were.  

2.  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.

3.  Considering the length of the applicant’s AWOL, there is an insufficient basis on which to grant the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__kan___  __rml___  __eem___  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.




__Kathleen A. Newman
          CHAIRPERSON




INDEX

CASE ID
AR20070010340
SUFFIX

RECON

DATE BOARDED
20071206
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19830517
DISCHARGE AUTHORITY
AR 635-200, ch 10 
DISCHARGE REASON
A70.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.