RECORD OF PROCEEDINGS


	IN THE CASE OF:    .	  


	BOARD DATE:	  20 December 2007
	DOCKET NUMBER:  AR20070011356 


	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 undesirable discharge be upgraded to honorable.   

2.  The applicant states, in effect, that he feels his discharge was an arbitrary decision based on an isolated incident.  He further states that his mother’s illness at the time justified his action and that prior to his AWOL (absent without leave) there were no unfavorable reports in his service record.  Considering his circumstance, he feels that his discharge should be upgraded to honorable.

3.  The applicant provides copies of his Report of Separation from Active Duty (DD Form 214).

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 14 December 1972, the applicant enlisted in the Indiana Army National Guard for 6 years.  He completed his initial active duty for training and was awarded military occupational specialty 76P2O (Stock Control and Accounting Specialist).

3.  On 26 February 1974, the applicant was reported to the Indiana State Adjutant General’s Office as an unsatisfactory participant.  Active duty orders were subsequently mailed to the applicant’s home address, ordering him to active duty effective 2 August 1974 for 19 months and 1 day.

4.  On 2 August 1974, the applicant was involuntarily inducted [in absentia] into the Regular Army.  

5.  On 8 November 1974, the applicant was apprehended by civilian authorities.  He appeared in Shelby Superior County Court on 4 December 1974 and was sentenced to 144 days in confinement.  [The civilian charge is not available.]  On 27 February 1975, the applicant was released from civilian confinement.  He failed to return to his unit.

6.  On 11 June 1975, the applicant was placed into the Personnel Confinement Facility, Fort Knox, Kentucky. 

7.  On 24 June 1975, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 
2 August to 8 November 1974; and from on or about 27 February to 11 June 1975.

8.  On 26 June 1975, 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 a discharge under other than honorable conditions, 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. 

9.  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 to 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.   

10.  On 2 July 1975, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 11 July 1975, the applicant was discharged accordingly.  He had completed a total of 6 months and 17 days of creditable active military service and had accrued 313 days of time lost due to AWOL and confinement.

11.  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.  An undesirable discharge is normally considered appropriate.

12.  On 24 August 1981, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

13.  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.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  Notwithstanding the applicant's assertion that the decision to discharge him was arbitrary and based on only one incident, there is no available evidence to show that he had any mitigating circumstances or that his AWOL was a reasonable solution to them.  

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
AR20070011356
SUFFIX

RECON
 
DATE BOARDED
20071220 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19750711
DISCHARGE AUTHORITY
AR 635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0700
2.

3.

4.

5.

6.