RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070015007 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Patrick H. McGann, Jr.

Chairperson

Ms. Eloise 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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his UOTHC discharge should be upgraded.  He adds that his medical condition at the time was undiagnosed.  His condition, he states, was present in 1988 but not recognized or diagnosed until 2000.

3.  The applicant provides a copy of his separation proceedings and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

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 record shows he enlisted in the Regular Army on 17 July 1984.  He successfully completed basic combat training and advanced individual training at Fort Benning, Georgia.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He was promoted to pay grade E-4 effective 1 November 1986. 

3.  Charges were preferred against the applicant on 15 April 1988, for being AWOL (absent without leave) from 4 January 1988 to 7 April 1988.

4.  On 15 April 1988, the applicant voluntarily submitted a request for discharge for the good of the service.  In his request the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the UCMJ, which could authorize the imposition of a bad 
conduct or dishonorable discharge.  He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense which also authorized the imposition of a bad conduct or a dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.

5.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel.  He consulted with counsel on the same day and was fully advised of the nature of his rights under the UCMJ.  Although he was furnished legal advice, he was informed that the decision to submit a request for discharge for the good of the service was his own.

6.  The applicant stated that he understood that if his request were accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He was advised and understood the effects of an under other than honorable conditions discharge and that issuance of such a discharge could deprive him of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all benefits administered by the Veterans Administration [now the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a veteran under both Federal and state law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

7.  On 1 June 1988, the separation authority approved the applicant's request for discharge and directed that he be furnished an UOTHC discharge and that he be reduced to the lowest enlisted grade.  

8.  The applicant was discharged in the rank/pay grade, Private/E-1, on 7 July 1988.  He had a total of 3 years, 8 months, and 17 days of net active service.

9.  The applicant's medical records are unavailable for review.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for 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.  A discharge under other than honorable conditions is normally considered appropriate.

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.

13.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request for discharge was made under coercion or duress. 

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant’s medical records are unavailable for review.

4.  The applicant contends that his medical condition at the time was undiagnosed, that his condition was present in 1988 but was not recognized until 2000.  There is no evidence in the applicant's records, and he has provided none, to show that he was diagnosed with any type of medical condition while 
serving on active duty or was diagnosed with any medical condition after his discharge that might have contributed to his misconduct and resultant discharge for the good of the service. 

5.  There is no evidence in the applicant's records, and the applicant has provided no evidence, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC discharge to an honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__EP____  __MJF__  ___PM __  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
AR20070015007
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080220
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19880707
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.