RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 20 March 2008
DOCKET NUMBER: AR20070017038
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. Michael J. Fowler
Analyst
The following members, a quorum, were present:
Ms. Linda D. Simmons
Chairperson
Ms. Eloise C. Prendergast
Member
Mr. Donald L. Lewy
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 general under honorable conditions discharge be changed to an honorable discharge. He further requests that his pay grade of
E-4 be reinstated.
2. The applicant states, in effect, that he was told he could upgrade his discharge after he got out of the military and that it is important to the job he is applying for. The applicant states that he went absent without leave (AWOL) due to his former wife neglecting their daughter. He knew going AWOL was wrong but at that time he had no choice. The applicant further states "I feel since this problem with my wife began while she lived with me in Germany and due to the way the military was at that time, I have always considered the Army part to blame."
3. The applicant provides his DD Form 214 (Report of Separation from Active Duty) with the period ending 28 May 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 22 April 1971 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 41E (Camera Repairman).
3. On 24 January 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL for the period 7 January 1974 through 15 January 1974. His punishment consisted of reduction to the pay grade of E-3 (suspended for 90 days) and forfeiture of $96.00 per month for one month.
4. An Army Europe (AE) Form 1107 (Bar to Enlistment/Reenlistment), approved on 4 February 1974, shows the applicant was barred from reenlistment for receiving an Article 15, for being late for work call formation, and for being on a drug program with no change in drug taking habits.
5. Headquarters, United States Army Europe and Seventh Army Special Orders Number 102, dated 12 April 1974, shows that the applicant was reduced in grade from E-4 to E-3 effective 5 April 1974 with a date of rank of 24 January 1974.
6. On 8 May 1974, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 8 March 1974 through 2 April 1974.
7. Evidence of record shows that the applicant was AWOL on 4 April 1974.
8. On 28 May 1974, the applicant was separated from active duty upon the expiration of his term of service (ETS) with a general under honorable conditions discharge. His DD Form 214 with the ending period 28 May 1974 shows in item 6b (Pay Grade) "E3." He had completed 3 years of creditable active service with 37 days of lost time due to AWOL.
9. Army Regulation 635-200 (Enlisted Personnel), in effect at the time, provided that the character of service would be determined only by the member's military record of the current enlistment of current period of service, which record included an individual's military behavior and performance of duty.
10. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 members 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his discharge should be upgraded to an honorable discharge and that his pay grade of E-4 should be reinstated. However, records indicate that he received two Article 15s, that he had three instances of AWOL, and that he was barred from reenlistment. Based on the applicants misconduct his record of service did not meet the regulatory standard of satisfactory service. In the absence of a record of honorable service, the applicant is not entitled to an honorable discharge.
2. Evidence of record shows he was reduced from E-4 to E-3 for being AWOL. There is no evidence and the applicant has not provided evidence to show his punishment for misconduct should be excused or that the Article 15 was improperly administered. Therefore, there is insufficient evidence to grant this request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__LDS __ __ECP __ ___DLL _ 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.
____ Linda D. Simmons __
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