RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070012065 


	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. 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 discharge under other than honorable conditions (UOTHC) be upgraded to general under honorable conditions.

2.  The applicant states that he enlisted as soon as he turned age 17.  He did well in training and was in no kind of trouble at all.  He made rank very fast while overseas.  The one bit of trouble he got into in Korea was over a small amount of marijuana.  He kept his grade and rank and that was the end of that.  He was in no other trouble and was a good Soldier.  

3.  The applicant states that when he came back to the States his company commander and he did not get along at all.  His commander’s son had been in trouble with drugs, and that was all it took for them to conflict.  At that time, his family was going through hard times.  He requested a leave, but his captain did not approve his leave.  He ended up going absent without leave (AWOL).  When he was caught, he requested a discharge of any type.  He was young and stupid and did not think about what that would do in later life.  Since leaving the Army, he has not been in any kind of trouble.  His grandson is now thinking about going in the Army to get his education.  He has never lied to his grandson before, and he does not want to start (lying) about something like this.

4.  The applicant provides his DD Form 214 (Report of Separation from Active Duty); three letters of support, dated 20 July 2007, 1 August 2007, and 3 August 2007; and a copy of his driver license.

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 12 May 1954.  He enlisted in the Regular Army on 14 June 1971.  He completed basic combat training and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 51A (Utilities Worker).

3.  On 6 March 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for assaulting a Korean civilian.

4.  On 14 November 1972, the applicant accepted NJP under Article 15, UCMJ for wrongfully possessing .09 grams, more or less, of marijuana and for breaking restriction.

5.  On 27 March 1973, at Fort Bragg, NC, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.  His punishment included 7 days correctional custody, suspended for 6 months.

6.  On 11 June 1973, the applicant accepted NJP under Article 15, UCMJ for sleeping at his post as a barracks guard.

7.  On 12 June 1973, the suspended punishment from the applicant’s 27 March 1973 Article 15 was vacated.

8.  On 12 June 1973, the applicant departed AWOL.  On 14 July 1973, he was arrested by civil authorities in Fayetteville, NC for possession of hashish and “manufacturing” marijuana.  He was returned to military control on or about       31 August 1973.  

9.  On 31 August 1973, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 12 June to on or about 30 August 1973.

10.  On 17 September 1973, 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 of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted a statement in his own behalf.

11.  In his statement, the applicant stated that he was sent to Fort Leonard Wood, MO for AIT and at that time he started to become dissatisfied with the Army.  He stated the training they gave him was worthless.  In Korea, he was not 

put to work in his MOS but was made a truck driver.  He received two Article 15s in Korea and was sent to the Freedom House for drug rehabilitation two times.  He was asked there if he wanted a drug abuse discharge, but he said no because he was getting married to a Korean woman and had to stay there to get married.  However, the Army took so long with his marriage papers that he was going home before he could get married.  The woman did not want to be left behind, so they did not get married.  He blamed the Army for that because he put in the paperwork for an extension, but it was disapproved.

12.  The applicant continued that at Fort Bragg he did not get along with his commander.  He received several Article 15s, and at one point was to go into confinement.  He escaped from his guard and went AWOL.  He was arrested by civil authorities for a drug charge and spent 46 days in the county jail and was found innocent of all charges.  If he did not get his discharge he would go AWOL again and again until he got one or was never caught.  He had no intention of returning after he was gone for over 30 days.

13.  On 23 October 1973, the appropriate commander approved the applicant’s request for discharge.

14.  On 1 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 2 years, 1 month, and      29 days of creditable active service and had 79 days of lost time.

15.  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 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 UOTHC is normally considered appropriate.

16.  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 contentions have been carefully considered.

2.  It is acknowledged that the applicant was young when he enlisted.  However, he completed basic combat training and AIT and should have been aware of the Army’s standards of conduct.  He contended that he only got into one bit of trouble in Korea over a small amount of marijuana.  However, he also received an Article 15 for assault while in Korea.  

3.  The applicant contended that when he came back to the States his company commander and he did not get along at all.  That contention appears to be corroborated by the statement he made at the time he requested discharge.  However, he also contended that at that time his family was going through hard times and his captain did not approve his request for leave.  In the statement he made at the time he requested discharge he made no mention of family problems.  In his request for discharge, he stated he went AWOL after escaping from his guard and had no intention of returning after he had been gone for over 30 days.  He stated he would go AWOL again and again until he was given a discharge or until he was not caught.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  He may not have thought about what that type of discharge would do in later life, but the evidence of record shows that he was advised of the effects of a discharge UOTHC.  

5.  There is insufficient evidence that would warrant upgrading his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__clg___  __jrs___  __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.




__Curtis L. Greenway__
          CHAIRPERSON




INDEX

CASE ID
AR20070012065
SUFFIX

RECON

DATE BOARDED
20080115
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19731101
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.