RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 13 December 2007
DOCKET NUMBER: AR20070010607
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:
Mr. Jeffrey C. Redmann
Chairperson
Mr. John G. Heck
Member
Mr. Qawiy A. Sabree
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 be upgraded to at least a general discharge.
2. The applicant states that he is a 100 percent disabled and handicapped walking quadriplegic. He made a bad judgment call when he was young. Now he needs medical help.
3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a copy of his DD Form 214 (Armed Forces of the United States Report of transfer or Discharge).
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 applicants 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 applicants 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 August 1953. He enlisted in the Regular Army on 21 August 1970.
3. On 5 October 1970, the applicant was convicted by a summary court-martial of attempted larceny. He was sentenced to hard labor without confinement for 45 days and to forfeit $83.00 pay per month for 1 month.
4. The applicant departed absent without leave (AWOL) on 11 October 1970. He was confined by civil authorities on 24 October 1970. He was returned to military control on or about 12 November 1970.
5. On 4 March 1971, the applicant was convicted by a special court-martial of being AWOL from on or about 11 to on or about 24 October 1970; from on or about 16 November to on or about 11 December 1970; from on or about 28 to on or about 30 December 1970; from on or about 11 to on or about 13 January 1971; and from on or about 18 to on or about 26 January 1971. He was sentenced to confinement at hard labor for 4 months and to forfeit $85.00 pay per month for 4 months.
6. On 13 August 1971, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being AWOL from on or about 9 to on or about 12 August 1971.
7. The applicant departed AWOL on 23 August 1971.
8. The court-martial charges and the discharge proceedings packet are not available.
9. On 28 October 1971, 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 with a discharge under other than honorable conditions. He had completed 7 months and 14 days of creditable active service and had 230 days of lost time.
10. 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 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 individuals admission of guilt. A discharge under other than honorable conditions is 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 Soldiers separation specifically allows such characterization.
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.
2. It is acknowledged that the applicant was young when he enlisted. However, after his first court-martial in October 1970 he should have realized that there would be consequences to any further misconduct.
3. Considering the applicants record of frequent and sometimes lengthy AWOLs, plus his other misconduct, the characterization of his discharge as under other than honorable was and still is appropriate.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__jcr___ __jgh___ __qas___ 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.
__Jeffrey C. Redmann__
CHAIRPERSON
INDEX
CASE ID
AR20070010607
SUFFIX
RECON
DATE BOARDED
20071213
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19711028
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.
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