RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  20 December 2007
	DOCKET NUMBER:  AR20070011166 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Jerome L. Pionk

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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he held a work status for 3 years without getting fired and that this constitutes an upgrade.

3.  The applicant provides no additional documentation.

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.  On 6 March 1979, the applicant enlisted in the Regular Army for 5 years.  He completed his initial training and was awarded military occupational specialty 19E1O (M48/M60 Armor Crewman).

3.  On 31 July 1979, the applicant was assigned for duty with 1st Squadron, 1st Cavalry Division, in the Federal Republic of Germany.

4.  On 21 January 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for the careless discharge of a firearm in the guard house and for sleeping while on guard duty.  The punishment included reduction to private, pay grade E2; a forfeiture of $112.00 pay per month for 1 month; and 14 days restriction and extra duty.  He did not appeal the punishment.

5.  On 25 April 1980, the applicant accepted NJP for failure to report for guard duty.  The punishment included reduction to private, pay grade E1; a forfeiture of $98.00 pay per month for 1 month; and 14 days restriction and extra duty.  He did not appeal the punishment.
6.  On 8 May 1980, the applicant accepted NJP for failure to report for extra duty. The punishment included a forfeiture of $98.00 pay per month for 1 month; and 14 days restriction and extra duty.  He did not appeal the punishment.

7.  On 29 August 1980, the applicant accepted NJP for failure to report for physical training and to go to his vehicle in the motor pool for move out on an alert.  The punishment included a forfeiture of $25.00 pay per month for 1 month; and 14 days restriction and extra duty.  He did not appeal the punishment.

8.  On 8 January 1981, the applicant accepted NJP for failure to report for physical training and to morning formation.  The punishment included a forfeiture of $50.00 pay per month for 1 month and 14 days extra duty.  He did not appeal the punishment.

9.  On 25 August 1981, the applicant went AWOL (absent without leave).  He was returned to military control on 15 December 1983 (843 days).

10.  On 20 December 1983, the applicant declined to undergo a medical examination.

11.  On 23 December 1983, the applicant submitted a statement of admission, for administrative purposes, to being AWOL.  He declared that he had been advised by his defense counsel that at the time the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial.  This was not due to any fault of the government but merely to the time required to request and receive by mail the documents and records.  He further stated that he was advised by his counsel that without these documents and records, his defense counsel could not completely advise him.  Knowing all of this, the applicant waived all defenses that may have become known had his defense counsel been able to review his records, and voluntarily declared that he had been AWOL from 25 August 1981 to 16 December 1983.  

12.  The applicant’s records do not contain the charge sheet for his AWOL.

13.  The discharge packet is missing from his military records.  However, his Certificate of Release or Discharge from Active Duty (DD Form 214) shows that he was administratively discharged on 10 February 1984, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial.  His service was characterized as under other than honorable conditions.  He had completed 2 years, 7 months and 14 days of creditable active duty and had 843 days of lost time due to AWOL.
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 statute 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.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days includes a punitive discharge and confinement for 1 year.

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.  The character of the discharge is commensurate with his overall record.

2.  There is no policy, regulation, directive, or law that provides for the automatic upgrade of a less than honorable discharge from military service.  Furthermore, maintaining a work status in the civilian community for any set number of years does not constitute authority for an automatic upgrade of a less than honorable discharge.

3.  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 and lost time also renders his service unsatisfactory. Therefore, he is not entitled to an honorable discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_RTD __  __JLP ___  __JRM __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.






__     Richard T. Dunbar___
          CHAIRPERSON




INDEX

CASE ID
AR20070011166
SUFFIX
 
RECON
 
DATE BOARDED
20071220 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19840210 
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.