RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070014505 


	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. 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, in effect, that his undesirable discharge be upgraded to honorable.   

2.  The applicant states, in effect, that the year he spent in the Republic of Vietnam was responsible for the road he took, and resulted in his getting diabetes, high blood pressure, heart attack, and memory loss.  He also states that it caused him to lose his child.  He believes that he has paid the price for long enough and deserves an upgrade of his discharge.

3.  The applicant provides no supporting documentation.

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 29 April 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 72C2O (Telephone Switchboard Operator).

3.  On 7 March 1973, the applicant’s records were reconstructed.  Currently available records contain only a limited amount of information.

4.  The available records show that the applicant was absent without leave (AWOL) during the period from 4 January to 5 February 1970.  No record of  punishment for this misconduct is available.




5.  On 18 July 1972, the applicant was convicted by a special court-martial for AWOL during the following periods: 14 April to 30 May 1971; 17 June to 5 August 1971; and 14 September to 29 May 1972.  His sentence consisted of confinement at hard labor for 3 months; a forfeiture of $100.00 pay per month for 3 months; and reduction to private, pay grade E-1.  He served 76 days in confinement.

6.  On 14 February 1973, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 24 October 1972 to on or about 22 January 1973.

7.  On 16 February 1973, 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. 

8.  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.   

9.  On 8 March 1973, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 16 March 1973, the applicant was discharged accordingly.  He had completed a total of 2 years, 2 months, and 26 days of creditable active military service and had accrued approximately 603 days of time lost due to AWOL and confinement.

10.  On 23 July 1984, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.





11.  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.

12.  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.  Notwithstanding the applicant's assertion that he has suffered enough and should receive an upgrade to his discharge, there is no available evidence to show that his misconduct involved any mitigating circumstances or that his repeated AWOL’s were a reasonable solution to them. 
 
4.  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.

5.  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

__ ECP__  __MJF___  __PHM__  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.





__ 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.