RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 January 2008
	DOCKET NUMBER:  AR20070016387 


	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.  Rial D. Coleman

Analyst

The following members, a quorum, were present:


Mr. Gerald J. Purcell

Chairperson

Mr. Donald L. Lewy 

Member

Mr. David W. Tucker

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 be upgraded from under other than honorable conditions.

2.  The applicant states, in effect, that his family members and recruiter should have informed the Army that he had a mental condition and drug problem prior to his enlistment. 

3.  The applicant provides no additional documentary evidence in support of this application.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests consideration of the applicant's request.

2.  Counsel provides no statement for consideration.

3.  Counsel provides no additional documentary evidence in support of this 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 he enlisted in the Army at the age of 17, entered active duty on 15 August 1974, and was discharged on 11 December 1975.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty 63F (Recovery Specialist).  The highest rank the applicant attained while serving on active duty was private first class/pay grade E-3.

3.  The applicant’s record reveals a disciplinary history that began during advanced individual training and includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions for the following offenses:  for failing to be at his place of duty at the appropriate time on 25 November 1974, 
25 March 1975, and 9 September 1975; and for possession of marijuana on 
21 August 1975.

4.  The applicant's record also includes disciplinary charges preferred against him under the UCMJ for the following offenses:  for being absent without leave (AWOL) during the period of 8 October 1975 to 20 October 1975, for missing movement on 10 October 1975, for being disrespectful towards a superior commissioned officer, resisting apprehension, and for breaking restriction.

5.  On 10 November 1975, 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.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  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 of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and he 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.

6.  On 1 December 1975, the separation authority approved the applicant's request and directed his separation under the provisions of chapter 10 of Army Regulation 635-200 and that he receive an Undesirable Discharge Certificate.  The record shows that on 11 December 1975, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 1 year, 3 months, and 15 days of creditable active military service and an under other than honorable conditions character of service.

7.  The applicant's record contains no documentary evidence of a mental condition or an addiction to drugs either prior to his enlistment or during his period of active duty. 

8.  On 27 June 1977, the applicant submitted a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) requesting an upgrade of his discharge.

9.  On 20 August 1979, the Army Discharge Review Board informed the applicant that his discharge had been reviewed as required by Public Law 95-126.  As a result of this review, the board determined that he had been properly discharged and his request for a change in the type and nature of his discharge was denied.

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

11.  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's contention that his discharge should be upgraded based on the fact that his family members and recruiter should have informed the Army that he had a mental condition and drug problem prior to his enlistment was carefully considered and determined to be without merit.

2.  There is no documentary evidence in the applicant's record of a mental condition or an addiction to drugs either prior to his enlistment or during his period of active duty.

3.  The applicant’s record reveals a disciplinary history that began during advanced individual training and includes being AWOL on four occasions, failing to be at his place of duty at the appropriate time on three occasions, possession of marijuana, missing movement, being disrespectful towards a superior commissioned officer, resisting apprehension, and for breaking restriction.


4.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on this 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, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_DWT____  __DLL__  _GJP ___  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.





 __Gerald J. Purcell_____
          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.