RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 10 January 2008
DOCKET NUMBER: AR20070011335
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. William D. Powers
Chairperson
Mr. Jerome L. Pionk
Member
Mr. Donald W. Steenfott
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 under other than honorable conditions (UOTHC) be upgraded to general under honorable conditions.
2. The applicant states that he had many problems at home at the time. Eight days after he married he was told his wife was pregnant by someone else. His father was ill. He was young and wanted to stay in but everything just happened the way it did. He was going to try the Reserves but could not pass the physical. He does not want any money; he just needs medical help. He would have stayed in but too much happened at once.
3. The applicant provides no additional evidence.
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 24 May 1952. He enlisted in the Regular Army on 15 December 1972.
3. On 29 January 1973, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from on or about 10 to on or about 22 January 1973.
4. On 6 June 1973, the applicant was convicted by a special court-martial of being AWOL from on or about 4 February to on or about 17 May 1973. A Summarized Record of Trial indicates that the applicant stated his wife was suing him for divorce. She was having problems and wrote some bad checks. He
went home. He and his wife had a talk, and she dropped the divorce charges. His daughter was staying with his mother. He was sentenced to confinement at hard labor for 2 months, suspended for 2 months.
5. The applicants DA Form 20 (Enlisted Qualification Record) shows he departed AWOL again on 12 June 1973.
6. The court-martial charge sheet and discharge packet are not available.
7. On 6 November 1973, 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 UOTHC. He had completed 1 month and 21 days of creditable active service and had 275 days of lost time.
8. 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 individuals admission of guilt. A discharge UOTHC is normally considered appropriate.
9. 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 applicants discharge proceedings were conducted in accordance with law and regulations applicable at the time.
2. The applicants personal problems were unfortunate; however, after his Article 15 and his special court-martial he knew there would be consequences for going AWOL. There is insufficient evidence that would warrant granting the relief requested.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__wdp___ __jlp___ __dws___ 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.
__William D. Powers___
CHAIRPERSON
INDEX
CASE ID
AR20070011335
SUFFIX
RECON
DATE BOARDED
20080110
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19731106
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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