RECORD OF PROCEEDINGS


	IN THE CASE OF:	  .


	BOARD DATE:	  12 February 2008
	DOCKET NUMBER:  AR20070014925 


	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. Deyon D. Battle

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 discharge, under other than honorable conditions, be upgraded to an honorable or a general discharge.

2.  The applicant states that his wife was raped in 1980.  He states that he requested a compassionate reassignment, and that he was refused.

3.  The applicant provides in support of his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 12 March 1982; a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 18 May 1979; and a copy of his DD Form 214N (Report of Separation from Active Duty – Bureau of Naval Personnel), for the period ending 29 January 1974.

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.  After completing 1 month and 2 days of total active service in the United States Navy, the applicant enlisted in the Regular Army (RA) on 19 May 1976, for 3 years, in the pay grade of E-1.  He successfully completed his training as an infantryman.  The applicant completed 3 years of net active service this period and he was honorably discharged on 18 May 1979, under the provisions of Army Regulation 635-200, chapter 2, at the expiration of his term of service.

3.  On 16 May 1980, the applicant enlisted in the United States Army Reserve, for 3 years, under the Delayed Entry Program (DEP), in the pay grade of E-3.  He was separation from the DEP and enlisted in the RA on 19 May 1980.

4.  Nonjudicial punishment was imposed against the applicant on 14 October 1980, for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay in the amount of $50.00 and 7 days of extra duty.

5.  The applicant departed absent without leave (AWOL) on 8 November 1980 and he remained absent in desertion until he was apprehended by civil authorities and returned to military control on 2 February 1982.

6.  On 4 February 1982, the applicant was notified that charges were pending against him for AWOL.  He acknowledged receipt of the notification on 5 February 1982 and after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  At the time that he submitted his request for discharge, he opted not to submit any statement in his own behalf.

7.  The appropriate authority approved the request for discharge on 19 February 1982, and directed the issuance of a discharge under other than honorable conditions.  Accordingly, on 12 March 1982, the applicant was discharged, under other than honorable conditions, under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He had completed 7 months of net active service during this period of enlistment.

8.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 29 July 1996, the ADRB denied the applicant’s request for upgrade.  The ADRB determined that the applicant’s discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

9.  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.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

3.  The applicant's contentions have been noted.  However, they are not supported by the evidence of record.  The available record indicates that the applicant went AWOL on 8 November 1980 and he remained absent until he was apprehended by civil authorities on 2 February 1982.  There is no evidence in the available record, nor has the applicant submitted any evidence to support his contentions that he requested a compassionate reassignment and was refused, or that his reasons for going AWOL had anything to do with his wife.  

4.  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 has failed to submit evidence that would satisfy this 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

__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
AR20070014925
SUFFIX

RECON

DATE BOARDED
20080212
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  360
144.0000/ADMINISTRATIVE DISCHARGE
2.  689
144.7000/FOR THE GOOD OF THE SERVICE
3.

4.

5.

6.