RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 January 2008
	DOCKET NUMBER:  AR20070012547 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Gerald J. Purcell

Chairperson

Mr. Donald L. Lewy

Member

Mr. David W. Tucker

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 an upgrade of his discharge. 

2.  The applicant states, in effect, that he was young and immature during his military service.  He also adds that he had psychological problems that he did not realize until later and that, upon his discharge, he turned to alcohol and drugs.

3.  The applicant provided a copy of a psychological evaluation report, dated 23 January 2007, in support of his 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 applicant's records show that he was born on 26 March 1958 and enlisted in the Regular Army at the age of 18 on 14 May 1976 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank he attained during his military service was private/pay grade E-2.

3.  The applicant's records show that he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar and the Marksman Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:


	a.  On 16 February 1977, for being absent without leave (AWOL) on 2 February 1977; for being AWOL on 8 February 1976; and for failing to go to his appointed place of duty on 16 February 1977.  His punishment consisted of reduction to the grade of private/E-1, forfeiture of $75 pay for one month, 14 days of extra duty, and 14 days of restriction.

	b.  On 18 March 1977, for being AWOL during the period on or about 9 March 1977 through on or about 16 March 1977.  However, the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) does not reveal the applicant’s punishment or the disposition of this Article 15. 

5.  On 31 March 1977, the applicant’s immediate commander reported him in a dropped from the rolls (DFR) status and remarked that the applicant had been AWOL since 22 March 1977 and dropped from the unit rolls pending charges from a previous AWOL.  

6.  On 1 July 1977, the applicant was apprehended and confined by civil authorities in Baldwin County, Alabama.  He was transported and released to military control at Fort Benning, Georgia, on 6 July 1977, and subsequently returned to Fort Bragg, North Carolina, on 19 July 1977.

7.  On 20 July 1977, Court-Martial charges were preferred against the applicant for being AWOL during the period on or about 22 March 1977 through on or about 1 July 1977. 

8.  On 22 July 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or an under other than honorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or an under other than honorable discharge.  He further acknowledged he understood that if the 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.  The applicant elected to submit a statement on his own behalf.

10.  In a statement, dated 22 July 1977, the applicant stated that he wanted a chapter 10 discharge because he felt the Army was the wrong place for him.

11.  On 26 July 1977, the applicant's immediate commander personally conducted an interview with the applicant and determined that the applicant was aware of the consequences of the discharge under other than honorable conditions and that the reason he was AWOL was because he was unable to adjust to the military.  The applicant further informed the immediate commander that he desired a discharge under chapter 10 of Army Regulation 635-200.  The immediate commander recommended approval of the applicant’s discharge for the good of the service and that the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

12.  On 13 August 1977, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 25 August 1977, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 11 months and 26 days of creditable active military service and had 106 days of lost time due to AWOL.

13.  The applicant submitted a copy of a psychological evaluation report conducted by the University of California, San Diego, California, on 23 January 2007.  It stated in pertinent part that the applicant joined the Army at age 17 and that he was discharged under other than honorable conditions for going AWOL.  He lived off base and frequently failed to report for duty due to depression.  He started using drugs following his discharge from the Army and divorce at the age of 19.  It also states that during his military service, the applicant met with a military psychiatrist on one occasion to discuss his frequent physical fighting, sparked by his paranoid ideation.  

14.  On 15 May 1980, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.




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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  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.

17.  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 contends that his discharge should be upgraded.

2.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.  Additionally, the applicant's contention that he suffered from a mental and/or psychological disorder during his military service was carefully considered and determined to be without merit.  There is no evidence and the applicant has not provided sufficient evidence showing that he was diagnosed and/or treated for such disorder while in the military.  Additionally, there is no evidence that a psychological disorder was the direct cause of his indiscipline

3. The psychological evaluation conducted at the University of California some 30 years after the fact is insufficient to meet the regulatory burden of proof required to establish entitlement to an honorable or general discharge.  The available evidence does not establish that the applicant was diagnosed or treated for a mental or psychological disorder that interfered with his ability to serve while he was on active duty.

4.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  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.

5.  The applicant's record of service shows that he was charged with being AWOL.  Based on his 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, the applicant is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__gjp___  __dll___  __dwt___  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.




							Gerald J. Purcell
______________________
          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.