RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070010426 


	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. 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 an upgrade of his discharge.

2.  The applicant states he was very young and made a big mistake during his military service.  He also states that he regrets making this mistake and that he loves his country. 

3.  The applicant did not provide any additional documentary evidence in support of his application.

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 was born on 15 July 1953 and enlisted in the Regular Army at the age of nearly 20 for a period of three years on 17 February 1972.  The highest grade he attained during his military service was private/E-1.

3.  The applicant's records show that he was reported absent without leave (AWOL) during the periods 17 April 1972 through 14 July 1972 and 20 August 1972 through 18 December 1972.

4.  On 22 February 1973, Court-Martial charges were preferred against the applicant for two specifications of AWOL during the period on or about 17 April 1972 through on or about 14 July 1972 and during the period 20 August 1972 through on or about 19 December 1972.

5.  On 29 December 1972, 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 a discharge under other than honorable conditions if his request was approved, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by Court-Martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant elected to submit a statement on his own behalf.  His statement, however, is not available for review with this case.

10.  On 29 December 1972, the immediate commander recommended approval of the applicant’s request.  In his comment, the immediate commander stated that the applicant had been personally interviewed by the Personnel Officer on 27 December 1972 and that he made the statement that he could not stay in the Army because of family problems.  The immediate commander further recommended an undesirable discharge.

11.  On 26 February 1973, the intermediate commander concurred with the immediate commander’s comments and recommended the applicant be discharged with an undesirable discharge.

12.  On 28 February 1973, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate and be reduced to the grade of private/E-1.  On 13 March 1973, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 6 months of creditable active military service with 209 days of lost time due to AWOL.

13.  There is no indication in the applicant's records that he applied to the Army Discharge Review Board for an upgrade of his discharge.

14.  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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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 (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.

16.  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.  The applicant contends that he is entitled to an upgrade of his discharge.

2.  The applicant was nearly 20 when he enlisted in the Regular Army and when he committed his offense.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily, and in writing, requested separation from the Army under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a Court-Martial.  By doing so, the applicant admitted guilt to the offense of being AWOL.  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.  There is no evidence in the available records nor did the applicant provide documentation to substantiate an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  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

__lds___  __ecp___  __jrh___  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070010426
SUFFIX

RECON

DATE BOARDED
20071204
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19730313
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.