RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070014078 


	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. Patrick H. McGann, Jr.

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Michael J. Flynn

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 that he was reported in absent without leave (AWOL) status although at the time of these charges he and his future wife were expecting their first child and that their child came to life with sickle cell anemia.  He further adds that he spent that time mourning with his future wife and family.  He concludes that prior to this incident, he considered himself a career Soldier with no disciplinary actions against him.

3.  The applicant did not provide any additional documentary evidence 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 enlisted in the Regular Army on 22 August 1978 for a period of 6 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist).  The highest rank he attained during his military service was specialist four/E-4.

3.  The applicant's records show that he was awarded the Parachutist Badge.   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) on 27 June 1980, for disobeying a lawful order to display his equipment for inspection on or about 15 May 1980; and failing to go to his appointed place of duty on or about 22 May 1980.  His punishment consisted of forfeiture of $116.00 pay and 14 days of extra duty.  However, on 27 June 1980, he appealed his punishment to the next superior authority; who denied the appeal, but set aside the portion of his punishment pertaining to 14 days of extra duty.

5.  On 12 January 1981, the applicant departed his unit in AWOL status.  He returned to his unit on his own on 15 January 1981.

6.  On 15 January 1981, the applicant's immediate commander initiated a bar to reenlistment against the applicant citing his incidents of indiscipline.

7.  On 20 January 1981, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to go to his appointed placed of duty on or about 14 January 1981.  His punishment consisted of reduction to the grade of private first class (PFC)/E-3, forfeiture of $142.00 pay for one month, and 14 days of extra duty.  On 20 January 1981, he appealed his punishment to the next superior authority; but his appeal was denied on 9 February 1981. 

8.  On 10 February 1981, the applicant's battalion commander approved the bar to reenlistment.

9.  On 23 February 1981, the applicant departed his unit in AWOL status.  He returned to his unit on his own on 26 February 1981.

10.  On 20 March 1981, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty on or about 14 March 1981.  His punishment consisted of forfeiture of $140.00 pay for one month and 7 days in correctional custody.  

11.  On 2 April 1981, the applicant departed his unit in AWOL status.  He was subsequently dropped from the Army rolls (DFR) on 13 April 1981.  He surrendered to military authorities at Fort Bragg, North Carolina, and was released to his unit on 31 August 1981.

12.  The facts and circumstances surrounding the applicant’s discharge proceedings are not available for review with this case.  However, it appears that the separation authority approved the applicant’s separation for discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) and directed the applicant be reduced to the lowest enlisted grade prior to discharge and be issued an Under Other Than Honorable Conditions Discharge Certificate.  
13.  On 22 October 1981, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time of his discharge shows he was discharged for the good of the service with an Under Conditions Other Than Honorable character of service.  This form further confirms the applicant had completed a total of 1 year and 11 months of creditable active military service and had 156 days of lost time due to AWOL.

14.  There is no indication in the applicant’s records that he underwent family problems during his military service. 

15.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. 

16.  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.

17.  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.

18.  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 undergoing family problems.  Additionally, there is no evidence and the applicant has not provided sufficient evidence showing that he addressed such problems with his chain of command or the support channels available at his installation.

3.  In the absence of the facts and circumstances surrounding the applicant’s discharge proceedings, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

4.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial 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 presumably met, and the rights of the applicant were presumably fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

5.  There is no evidence in the available records nor did the applicant provide documentation to substantiate an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  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

__phm___  __ecp___  __mjf___  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.




						Patrick H. McGann, Jr.
______________________
          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.