RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  02 February 2008
	DOCKET NUMBER:  AR20070012838 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Antonio Uribe

Member

Mr. Ronald D. Gant

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 to honorable.

2.  The applicant states, in effect, that he served the time and would like his discharge upgraded.

3.  The applicant did not provide any documents 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 military record shows he enlisted on 24 August 1970.  He successfully completed basic combat and advanced individual training.  He was awarded the military occupational specialty (MOS) 12B (Pioneer).  On 9 August 1972, the applicant was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 10 August 1972 with a subsequent reenlistment on 14 November 1979.  The highest rank he attained while serving on active duty was staff sergeant/pay grade E-6 with an effective date of rank of 27 February 1977.

3.  On 13 March 1978, the applicant was adjudged in a Special Court-Martial of violating Article 91, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order of a superior noncommissioned officer.  On 5 May 1978, the Special Court-Martial was approved.  The punishment imposed was a letter of admonishment and forfeiture of pay in the amount of $50.00 per month for 3 months.  There are no records of prior convictions or acceptance of nonjudicial punishment under the provisions of Article 15, UCMJ in the applicant's available military records.


4.  The applicant's separation processing packet was not available for review.
The facts and circumstances pertaining to the applicant’s discharge are not on file.

5.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued at the time of his discharge on 28 April 1983 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of the service in lieu of court-martial.  His characterization of service was under other than honorable conditions.  This same DD Form 214 shows he completed a total of 12 years, 8 months, and 5 days of creditable active military service.  The rank at the time of his separation was private/pay grade E-1.

6.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

7.  Chapter 10 of Army Regulation 635-200 (Personnel Separation), provides that the applicant must have indicated that he understood that by requesting a discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He must have 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.

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, 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.  

9.  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.

10.  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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded based on time served.

2.  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.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant’s record of service shows his Special Court-Martial conviction was approved on 5 May 1978.  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.  The ABCMR does not upgrade discharges based solely on the passage of time.  As a result, the applicant is not entitled to an honorable discharge.

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KLW__  __AU___  __RDG___  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.




____Kenneth L. Wright____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080205
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.