RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070010933 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Joe R. Schroeder

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 under other than honorable conditions discharge be upgraded to an honorable or general discharge.

2.  The applicant states, in effect, that he was not given a board hearing or a chance to see a psychiatrist to follow up on his psychiatric conditions that he requested.  Due to medical problems at home with both parents and their subsequent death he experienced excessive grief.  He has led an exemplary life devoting himself as a teacher supporting the needs of the handicapped and his country, and he has never done anything wrong to discredit himself and country.  Also, he had achieved the pay grade of E-5 prior to his problems.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), three character letters, a Letter of Appreciation, two Certificates of Nomination from the American Legion, and two Certificates of Completion from the Department of Education.

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 military service records show that he entered active duty on 17 October 1978.  He completed all the necessary training and was awarded the military occupational specialty (MOS) 72E (Telecommunications Center Operator).  He served in that MOS until he was discharged under other than honorable conditions.  His service records show that the highest pay grade achieved was E-3.




3.  On 15 August 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty without authority on 15 to 28 May  
1980, 2 June 1980, and 21 July 1980.

4.  On 12 February 1981, charges were preferred against the applicant for committing sodomy with a person; stealing a wristwatch of a total value of  
$94.00 outside the territorial limits of the United States; and being absent without authority (AWOL) during the period 14 January to 12 February 1981.

5.  The applicant's chain of command recommended trial by Special Court-Martial empowered to adjudge a bad conduct discharge.

6.  On 13 February 1981, 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Discharge.  The applicant was advised that he may submit any statements he desires in his own behalf, which will accompany his request for discharge.  The applicant did not submit a statement in his own behalf.

8. On 20 February 1981, the applicant's commander forwarded his recommendation for separation to the approving authority.  In the commander's recommendation it was stated that the applicant was not suited for rehabilitation and eventual return to military life and it was in the best interest of the United States Army that he be discharged from the service.

9.  On 26 February 1981, the approving authority approved the applicant's request and directed the applicant be discharged from the U.S. Army for the good of the service and be issued a Under Other Than Honorable Conditions Discharge Certificate. 
10.  The applicant's military service records contain a Standard Form 88 (Report of Medical Examination), dated 26 February 1981, wherein the applicant was determined medically qualified for retention without any physical profile limitations.

11.  The Report of Mental Status Evaluation (DA Form 3822-R) shows that his behavior was normal, his level of alertness and orientation was fully alert and fully oriented, his mood was level, thinking process and thought content was clear and normal, and his memory was good.

12.  On 2 March 1981, the applicant was discharged.  He had completed a total of 2 years and 4 months of active military service.  His DD Form 214 shows that he had accrued 16 days of time lost.

13.  The character letters, Letter of Appreciation, and the certificates submitted by the applicant state, in effect, that the applicant is very thoughtful, caring, and supportive towards the disabled American veterans organizations and handicapped children.  His certificates show he was commended for his outstanding performance and attitude that he displayed during an Army Training Exercise while on active duty.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

15.  Army Regulation 635-200 (Personnel 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

16.  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.

17.  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 his discharge should be upgraded to an honorable or a general discharge.

2.  The applicant volunteered to be discharged for the good of the service in lieu of a trial by a court-martial acknowledging he was guilty of the charges against him.  There is no evidence in the applicant's military service records that show he was not afforded an opportunity for a board hearing.

3.  There is no evidence in his medical records that show he had a psychiatric condition and that he requested to be seen by a psychiatrist.  His last medical evaluation shows no significant mental illness and he was in good health upon separation.

4.  The applicant's statement that due to medical problems at home with both parents and their subsequent death and that he experienced excessive grief is noted.  The character letters he submitted were also noted.  However, he has not submitted any documentation to confirm his contention and, even if he had, it is not sufficiently mitigating to grant the relief sought.

5.  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.  The applicant's AWOL renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

6.  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 has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QAS__  __CLG___  __JRS__  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.




___Curtis L. Greenway__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.