RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 February 2008
	DOCKET NUMBER:  AR20070013637 


	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:


Ms. Kathleen A. Newman

Chairperson

Mr. Jose A. Martinez

Member

Ms. Susan A. Powers

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 undesirable discharge be upgraded to honorable.

2.  The applicant states that he was 18 years old and became involved in the court-martial of his platoon sergeant.  He walked in on his platoon sergeant beating a young Soldier.  He helped the Soldier get away.  They court-martialed the platoon sergeant, but the platoon sergeant had him (the applicant) beaten unrecognizable and shot at.  He was scared, so he took off.  

3.  The applicant provides no supporting evidence.

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 14 August 1957.  He enlisted in the Regular Army on 20 October 1975.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

3.  On 16 September 1976, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from on or about 2 July 1976 to on or about 13 September 1976.

4.  On 17 September 1976, the applicant completed a separation physical and was found qualified for separation.  He stated he was in good health and noted no other physical conditions other than a scar on the right hand and a fractured right wrist, incurred in 1973.

5.  On 17 September 1976, the applicant completed a mental status evaluation.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

6.  On 17 September 1976, 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 that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf.

7.  On 14 October 1976, the commander of the Fort Sill, OK confinement facility forwarded the applicant’s request to the approving authority with a recommendation for approval.  His forwarding recommendation noted that the applicant had four Article 15s; however, no Article 15s are filed in his record.  His forwarding recommendation also noted that the applicant gave no reason for his AWOL.

8.  20 October 1976, the appropriate authority approved the applicant’s request and directed he be furnished an Undesirable Discharge Certificate.

9.  28 October 1976, 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 characterization of service of under other than honorable conditions.  He had completed 10 months and 7 days of creditable active service and had         73 days of lost time.

10.  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 at any time after the charges have been preferred, 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 under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

11.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

12.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant had an opportunity to give his reason for going AWOL when he requested discharge, but he failed to take advantage of that opportunity.  He stated that the platoon sergeant had him beaten unrecognizable and shot at; however, there is no evidence of record (e.g., medical records or police reports) and he provides no such evidence that could corroborate his contentions.

3.  There is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__kan___  __jam___  __sap___  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.




__Kathleen A. Newman__
          CHAIRPERSON




INDEX

CASE ID
AR20070013637
SUFFIX

RECON

DATE BOARDED
20080212
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19761028
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.