RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070012470 


	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

Ms. Antoinette Farley

Analyst

The following members, a quorum, were present:


Mr. David K. Haasenritter 

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

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 be upgraded.

2.  The applicant makes no additional statement on his application.  

3.  The applicant provided a self-authored letter, dated 1 September 2007 and five letters of character reference in support of this application.

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 facts and circumstances of the applicant's separation are not available for review with this case; however, there is sufficient records to make a fair and impartial decision.

3.  The applicant's record shows he enlisted in the Regular Army on 29 February 1972 for a period of three years.  He was trained in, awarded, and served in military occupational specialty (MOS) 51A (Construction and Utility Worker).  The highest rank he attained while serving on active duty was in the rank of private/pay grade E-1.  

4.  The applicant's records do not show any significant acts of valor during his military service.

5.  The applicant's service records reveal a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 27 December 1969, for being absent from formation; on 20 April 1970, for being absent from his post; on 26 June 1970, for being found with a Vietnamese female at his post; on 9 July 1970, for failure to obey orders; on 25 July 1970, for being absent from his unit; on 22 February 1971, for being absent from his unit; on 5 March 1971, for being absent from his place of duty, and on 15 June 1971, for being absent without leave (AWOL) during the period 1 June 1971 through 8 June 1971. 

6.  Headquarters, U.S. Army Training Center Engineer, Fort Leonard Wood, Missouri Special Orders Number 59, dated 28 February 1972, discharged the applicant on 29 February 1972, for the good of the service and issued an under conditions other than honorable discharge.

7.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at the time of his discharge confirms he was separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of court-martial with a characterization of service as under other than honorable conditions.  This form shows that the applicant completed a total of 2 years, 6 months, and 9 days of creditable active military service.  

8.  Item 30 (Remarks) of the applicant's DD Form 214 shows he had 72 days of lost time under Title 10 U.S.C. during the periods 10 February 1971 through 11 February 1971, 1 June 1971 through 7 June 1971, 1 November 1971 through 16 November 1971, and 2 December 1971 through 17 January 1972.

9.  In his self-authored letter, dated 1 September 2007, the applicant requests reinstatement of benefits.  The applicant continues that he is very sick and needs medical care.  The applicant concludes that that the Veteran Hospital will not see him until his benefits are reinstated.

10.  The applicant provided five letters from various co-workers, family, friends and clergy who state that the applicant had many problems since his release from the service primarily with the decline of his mental and physical health and any assistance that may help the applicant in his endeavor to have his benefits reinstated would be appreciated.  

11.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary.  Although the separation processing paperwork is not available for review with this case it is presumed that 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.  It is also presumed that 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 and acknowledged that 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.  

12.  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.

13.  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, which 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.

14.  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.

15.  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.

16.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for an AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded. 

2.  Although the applicant's service records are incomplete, evidence shows that he was punished under the UCMJ for being AWOL and that he was separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of court-martial.  Additionally, his records do not indicate any significant acts of valor.

3.  Since separations under this provision of regulation are voluntary and the requestor must admit guilt to the charges against him, in the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant's record of service included five non-judicial punishments for various offenses which include being absent from formation, absent from his post, several periods of being absent from his unit, found with a Vietnamese female at his post, failure to obey orders, and 75 days of lost time due to being AWOL.  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 also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  The letters submitted in support of the applicant's claim for reinstatement are noted.  However, the applicant has failed to show through the evidence submitted or the evidence of record that the character of discharge issued to him was in error or unjust.  Therefore, there is no basis for granting his request.

6.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for Veterans Benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__DKH__  _JKH___  __EEM___  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.





_David K. Haasenritter _
          CHAIRPERSON





INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.