RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 March 2008
	DOCKET NUMBER:  AR20070016982 


	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. Judy Blanchard

Analyst

The following members, a quorum, were present:


Mr. Frank C. Jones

Chairperson

Ms. Carmen Duncan

Member

Mr. Scott W. Faught

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 be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he is requesting an upgrade of his discharge because he would like the members of the Board to consider his record of exemplary performance in the Army prior to the incident.  He received several awards and certifications in his chosen military occupational specialty and was promoted to sergeant pay grade E-5 at an accelerated pace.  As a matter of fact he took great pride in his status as a Soldier.  He always maintained a sharp appearance, and he was a professional in every aspect of his military service.  The events that surrounded his discharge were an emotionally charged time for him.  His spouse at the time was also an enlisted member of the Army, and pregnant with their first child.  He received orders for Korea for a 
12 month unaccompanied tour of duty.  Although, he requested, on more than one occasion through his chain of command a change or an amendment to his orders, his request was denied.  He reluctantly reported for duty in Korea.  After a short period of time his spouse was ready to deliver their child and she miscarried.  He was afforded emergency leave for 30 days back at Fort Knox, Kentucky.  Because neither he nor his wife had family in the area to help them cope with the terrible loss, his marriage fell apart and he became depressed.  He again requested an amendment or a change to his orders to allow him to stay in the United States and try to fix his marriage.  Again his request was denied.  He believed because he was young he decided to go absent without leave (AWOL), the worst decision of his life.  After a period of about 30 days, he decided to turn himself in to military authorities.  Since being discharged from the Army, he has tried to live as an honest, hard working compassionate person, who tries to see the good in every situation.  While he has not been successful in every endeavor that he has undertaken, he has never quit trying.  He sincerely asks the members of the Board to help him in eliminating this “black mark” from his military service.  

3.  The applicant provides no additional documents in support of his 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 record shows that he enlisted in the Regular Army on 
29 April 1980, for a period of 3 years.  He completed the required training and was awarded military occupational specialty 19E (Armor Crewman).  The highest grade he attained was pay grade E-5.  On 6 March 1983, the applicant was discharged from service after serving 2 years, 10 months and 10 days of active honorable military service.  On 7 March 1983, the applicant immediately reenlisted for a period of 4 years.

3.  On 11 April 1983, while assigned to a unit in Germany, the applicant accepted nonjudicial punishment for communicating a threat to his superior noncommissioned officer, for assaulting his superior noncommissioned officer by pushing him with his hands and for disobeying a lawful order by having a female in his room.  His imposed punishment was a reduction to pay grade E-3, a forfeiture of $100.00 pay and 14 days extra duty.  On 4 September 1984, the applicant was again promoted to sergeant pay grade E-5.  

4.  On 20 March 1985, the applicant was assigned to a unit in Korea.  There is no indication in his military record which indicates that he tried to get his orders to Korea revoked or amended because of family problems. 

5.  On 11 November 1985, the applicant was reported for being AWOL.  The applicant surrendered to civilian authorities and returned to military control on 
21 December 1985.  The applicant did not indicate the reason why he went AWOL.   

6.  On 24 December 1985, court-martial charges were preferred against the applicant for being AWOL from 12 November 1985 to 21 December 1985.

7.  On 27 December 1985, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under conditions other than honorable and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, the request was made of his own free will and he was not coerced into making the request.  The applicant understood that by submitting the request for discharge, he acknowledged that he was guilty of the charge against him.  He also acknowledged 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.  He further acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions (UOTHC).  The applicant did not submit a statement in his own behalf.  The applicant’s Personnel Qualification Record, Verification of Personnel Data and other back ground data, shows that the applicant was single with no dependents during his enlistments.  

8.  On 27 December 1985, the applicant waived a medical examination for separation from service.  On the same day the applicant was placed on excess leave for 98 days.

9.  On 7 March 1986, the separation authority approved the applicant’s request for discharge and directed that he be reduced to the lowest enlisted grade and that he be issued a UOTHC Discharge Certificate.  

10.  On 3 April 1986, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10 (for the good of the service – In lieu of court-martial).  The separation document (DD Form 214) he was issued confirms he completed 5 years, 9 months, and 26 days of creditable active military service and accrued 38 days of time lost.  He was awarded the Army Service Ribbon, the Overseas Service Ribbon and the Good Conduct Medal. 

11.  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, 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.  An UOTHC discharge is normally considered appropriate.  

12.  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.

13.  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.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant was carefully considered and found to be insufficient in merit.  

2.  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, duress or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable condition.  The applicant did not submit a statement in his behalf and there is no evidence in his military record that indicates that he was dealing with a family crisis / problems.  In fact his personnel record indicates that he was single with no dependents through out his military record.  

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service.  

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request. 

5.  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 this requirement.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__FJ____  __CD____  ___SF___  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.





____Frank C. Jones______
          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.