RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070013278 


	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. John Infante

Chairperson

Mr. Eric N. Andersen

Member

Mr. David K. Haasenritter

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 under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he believes his discharge was too harsh for the crime he committed.  He acknowledges that the crime he committed was very serious and he deserved to be punished; however, he believes the punishment he received did not match the offense.  He further states that while he was AWOL (absent without leave) he was having marital problems and his wife left him.  His wife at the time was having a hard time coping with his being in the field all of the time.  Also, he did not realize that the stress he was under was causing him to be depressed.  He was drinking heavily and only wanted to get away from the Army.  He contends that he was not properly counseled on the repercussions that this discharge would have on him.  Since his discharge he has had some trouble with the law, but is now clean, sober, and trying to make a good life for himself.  He believes his depression was largely responsible for his drinking and for his disciplinary problems that led to his discharge.  He also believes that veterans who were discharged after him did not receive such a harsh punishment for similar crimes.   

3.  The applicant provides copies of his two Reports of Separation from Active Duty (DD Forms 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 10 March 1976, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 16R1O (Air Defense Artillery Short Range Gunnery Crewman).  

3.  On 8 July 1976, the applicant was assigned as a gunner with the 67th Air Defense Artillery Regiment, 3rd Infantry Division, in the Federal Republic of Germany.   

4.  On 22 September 1976, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being drunk and disorderly; for disobeying a lawful order from a superior noncommissioned officer; and for assaulting a superior noncommissioned officer with his fists.  The punishment included reduction to private, pay grade E2 (suspended); and 14 days restriction and extra duty.

5.  On 1 September 1977, the applicant was promoted to specialist four, pay grade E-4.

6.  On 23 July 1978, the applicant was returned to the United States for duty at Fort Bliss, Texas.

7.  On 9 November 1978, the applicant accepted NJP for failing to go to his appointed place of duty.  The punishment included reduction to private first class, pay grade E-3 (suspended); forfeiture of $62.00 pay per month for 1 month; and 14 days extra duty.

8.  On 13 December 1978, the suspended reduction to private first class, pay grade E-3 was vacated.

9.  On 10 April 1979, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the periods from 24 January to 14 March 1979 and from 26 March to 2 April 1979.  

10.  On 10 April 1979, 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.    Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

11.  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.  He was advised that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

12.  On 27 April 1979, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate (DD Form 794A).  On 4 May 1979. the applicant was discharged accordingly.  He had completed a total of 5 years, 6 months, and 18 days of creditable active military service and had accrued 56 days of time lost due to AWOL.

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

14.  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.  A discharge under other than honorable conditions is normally considered appropriate.

15.  The UCMJ provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, AWOL of more than 30 days.

DISCUSSION AND CONCLUSIONS:

1.  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.

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

3.  The applicant’s contention that his punishment was too harsh and did not fit the crime is not substantiated by any available evidence of record.  
4.  The applicant’s assertion of his good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

5.  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.

6.  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

__DKH__  __JI_____  __ENA   _  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.




____     John Infante     __
          CHAIRPERSON




INDEX

CASE ID
AR20070013278
SUFFIX

RECON
 
DATE BOARDED
20080131  
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.