RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070015109 


	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. John T. Meixell

Chairperson

Ms. Carmen Duncan

Member

Ms. Rea Nuppenau

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 discharge, characterized as under other than honorable conditions (UOTHC), be upgraded.

2.  The applicant states, in effect, that he was robbed of his gear when he was in winter training and did not have the proper gear.  He adds that he is a born again Christian and old things have passed away.  He is currently living for Jesus.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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 11 April 1978.  He successfully completed basic combat training and advanced individual training at Fort Bliss, Texas.  On completion of his training, he was awarded the military occupational specialty (MOS) 16P (Air Defense Artillery Short Range Missile Crewman).  He was promoted to pay grade E-2 on 11 October 1978. 

3.  Charges were preferred against the applicant on 15 February 1979 for being AWOL (absent without leave) from 16 to 20 January 1979; for wrongfully communicating a threat to kill another Soldier on 30 January 1979; for unlawfully striking another Soldier on the chest with his fist on 30 January 1979; and for committing an assault on another Soldier on 30 January 1979 by chasing him with a dangerous weapon, likely to produce grievous bodily harm, to wit: an axe.



4.  Item 21, of the applicant's DA Form 2-1 (Personnel Qualification Record-Part II), shows that he was AWOL from 16 January 1979 through 19 January 1979 and 1 February 1979 through 28 February 1979. 

5.  On 12 March 1979, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Department of Veterans Affairs (DVA) if a discharge characterized as UOTHC were issued.  He waived his rights and elected to submit a statement in his own behalf; however, his statement is unavailable for review. 

6.  On 23 March 1979, 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.  

7.  The applicant was discharged in the rank/pay grade, Private/E-1, on 9 April 1979.  He had a total of 10 months and 26 days of net active service.

8.  On 3 September 1987, the ADRB denied the applicant's petition to upgrade his discharge.

9.  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.

10.  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.



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

3.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant alleges that he was robbed of his gear while he was in winter training and did not have the proper gear; however, he has provided no evidence, and there is none available to the Board, to support his allegations.  

5.  The applicant's statements that he is a born again Christian, that old things have passed away, and he is currently living for Jesus were considered; however, his current religious beliefs do not support a change of his UOTHC discharge.

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC 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

___J____  __cd____  ___r_____  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.




___     John T. Meixell____________
          CHAIRPERSON




INDEX

CASE ID
AR20070015109
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080214
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19790409
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.