RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 December 2007
	DOCKET NUMBER:  AR20070010652 


	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 honorable.

2.  The applicant states that he suffered a nervous breakdown and became very depressed because of the loss of his wife-to-be.  They were living together when she said that, because of his depression, she was leaving.  At that time he went absent without leave (AWOL).  He has been trying to rectify the mistake he made as a young Soldier.

3.  The applicant provides a personal profile; a certificate of achievement, dated 2000; a dental laboratory diploma, dated 2007; two training certificates, one dated 19 October 1998 and one dated 17 October 1998; a certificate of high school equivalency, dated 12 November 1997; a certificate of participation, dated 27 May 2005; a copy of his driver license; a copy of his armed security guard card; and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 24 June 1961.  He enlisted in the Regular Army on 10 October 1978.  He completed basic training and advanced individual training and was awarded military occupational specialty 44B (Metal Worker).

3.  On 4 April 1979, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty and for absenting himself from his unit.

4.  On 13 August 1979, the applicant accepted NJP under Article 15, UCMJ for failing to obey a lawful order to get his hair cut.

5.  On 13 September 1979, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his place of duty.

6.  On 10 October 1979, the applicant accepted NJP under Article 15, UCMJ for being AWOL from on or about 24 to on or about 26 September 1979.

7.  On 4 June 1980, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 14 January 1980 to on or about 6 May 1980.

8.  On 20 May 1980, the applicant completed a mental status evaluation and was psychiatrically cleared for any administrative action deemed appropriate by his command.  He indicated that he did not desire a separation medical examination.

9.  On 27 May 1980, 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.  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 under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf. 

10.  On 12 June 1980, the appropriate authority approved the applicant’s request and directed he receive a discharge under other than honorable conditions.

11.  On 7 July 1980, 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         1 year, 5 months, and 2 days of creditable active service and had 116 days of lost time.

12.  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 under other than honorable conditions is normally considered appropriate.  

13.  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.  

14.  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’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress or that he was mentally incapable of making an informed decision to request discharge.

2.  The reason given by the applicant for his AWOL has been carefully considered.  However, he completed a mental status evaluation in May 1980 that psychiatrically cleared him for any administrative action deemed appropriate by his command.  In addition, it is noted that his record of misconduct, to include a prior period of AWOL, began before the AWOL that led to his discharge.

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
AR20070010652
SUFFIX

RECON

DATE BOARDED
20071213
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800707
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.