RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 November 2007
	DOCKET NUMBER:  AR20070010520 


	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. Rene’ R. Parker 

Analyst

The following members, a quorum, were present:


Ms. Barbara Ellis

Chairperson

Mr. Jose Martinez

Member

Mr. Chester 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, that his under other than honorable conditions discharge be upgraded to honorable. 

2.  The applicant states that he realized he "screwed up" but he is unhappy with his character of service.  He maintains that he received an honorable discharge from the National Guard.

3.  The applicant does not provide any additional documents 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 record shows he enlisted in the Army National Guard (ARNG) on 6 March 1965 and was placed on active duty on 5 May 1965.  He was honorably released from active duty and returned to his ARNG unit in Ohio on 
26 September 1965.  Records further show that the applicant was ordered to active duty on 8 July 1970, as a Reservist, due to his unsatisfactory participation in unit training.

3.  On 30 April 1971 the applicant was convicted by a special court-martial for being absent without leave (AWOL) from 8 July 1970 to 23 December 1970, 25 January 1971 to 27 January 1970, and from 2 February 1971 to 3 March 1971.  His punishment consisted of confinement at hard labor for 4 months and a forfeiture of $50.00 per month for 3 months.  On 16 June 1971 the unexecuted portion of the applicant’s sentence to confinement and forfeiture of pay was remitted.

4.  On 6 August 1974 charges were preferred against the applicant for being AWOL from his unit from on or about 2 July 1971 until on or about 29 July 1974.

5.  On 6 August 1974 the applicant underwent a medical examination in which he was found to be qualified for separation. 
 
6.  On 9 August 1974 the applicant consulted with counsel and requested a 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.

7.  The applicant signed his request for discharge which showed that he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant submitted a statement on his behalf.

8.  In the applicant’s undated statement, he said that he could not adjust to military life and was not accustomed to being ordered around.  Additionally he stated that he would be very disappointed if chapter action was not approved and he would go AWOL again.  The applicant reiterated that he just wanted to get out of the military and go back home.

9.  On 9 August 1974 the captain in command of the Special Processing Company, US Army Personnel Control Facility, Fort Knox, Kentucky, recommended approval of the applicant’s request for discharge for the good of the service.  He recommended that the applicant be issued an Undesirable Discharge Certificate. 

10.  On 19 August 1974 the major in command of Headquarters, US Army Personnel Control Facility, Fort Knox, Kentucky, recommended approval of the applicant’s request for discharge for the good of the service.  He recommended that the applicant be issued an Undesirable Discharge Certificate. 

11.  On 22 August 1974 the brigadier general in command of Headquarters, US Army Armor Center and Fort Knox, Fort Knox, Kentucky, approved the applicant’s discharge under the provisions of chapter 10 of Army Regulation   635-200 with the issuance of an Undesirable Discharge Certificate.  

12.  The applicant's DD Form 214 (Report of Separation from Active Duty from the Armed Forces of the United States) shows that he was discharged with a characterization of service as under other than honorable conditions on 
13 September 1974.  The applicant had completed 11 months and 14 days of total active service.  This form also shows that the applicant had 430 days of lost time prior to his normal expiration term of service (ETS) and 957 days lost after his normal ETS.

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

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 trial by court-martial.  At the time, an undesirable discharge was 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.  Evidence of record shows the applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  

2.  The applicant has failed to provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  

3.  The applicant’s record of service included a special court-martial and over 1,487 days of AWOL.  Based on this 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 renders his service as unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__BE ___  __JM____  __CD___  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 Ellis_________
          CHAIRPERSON




INDEX

CASE ID
AR20070010520
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071108
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
107.00
2.

3.

4.

5.

6.