RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 March 2008
	DOCKET NUMBER:  AR20070017074 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Gerald J. Purcell

Member

Ms. Rea M. 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 an upgrade of his discharge.

2.  The applicant states that he departed his unit in absent without leave (AWOL) status due to his mother's illness and that he returned to his unit as quickly as possible. 

3.  The applicant did not provide any additional documentary evidence 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 records show that he enlisted in the Regular Army on 30 November 1972 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76A (Supplyman).  The highest rank he attained during his military service was private/E-2.

3.  The applicant's record shows that he was awarded the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16).  His record does not show any significant acts of valor during his military service.

4.  The applicant's record reveals a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 14 June 1973, for dereliction in the performance of duties, on or about 5 June 1973; disobeying a lawful order from a superior noncommissioned officer, on or about 11 June 1973; and failing to go to his appointed place of duty, on or about 13 June 1973.  His punishment consisted of reduction to the grade of private/E-1, forfeiture of $50.00 pay per month for one month, and 14 days of extra duty; and 

	b.  on 16 July 1973, for failing to go to his appointed place of duty, on or about 2 July 1973.  His punishment consisted of forfeiture of $50.00 pay per month for one month and 7 days of extra duty.

5.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that the applicant was reported AWOL from 8 August 1973 to 12 August 1973 and from 24 August 1973 to 5 November 1973.  Following his return from AWOL, he was placed in pre-trial confinement on 6 November 1973 pending formal court-martial charges.

6.  On 9 November 1973, the applicant submitted a statement stating he wished to be discharged from the Army due to his mother's illness and her lack of means of support.  He further stated that he found it difficult to adjust to military life and was unable to take orders from others. 

7.  On 16 November 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of an under other than honorable conditions discharge.  He further acknowledged he understood that if the discharge request were 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.  

9.  On 7 December 1973, formal court-martial charges were preferred against the applicant for one specification of assaulting a superior commissioned officer by picking up a stone and drawing it back as if to hit him on or about 7 November 1973, and for assaulting a superior commissioned officer by shoving him on or about 7 November 1973.  

10.  On 4 December 1973, the applicant's immediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.  The immediate commander remarked that the applicant received nonjudicial punishment on two occasions and that his record indicates he did not want to be rehabilitated.  The immediate commander further added that the applicant's alleged family problems posed a potential increased burden on Army service and that it would be in the interest of the Army to grant the request for discharge.  

11.  On 14 December 1973, the applicant's battalion commander recommended approval of the chapter 10 discharge with an Undesirable Discharge Certificate.  The battalion commander remarked that the applicant was a poorly motivated, inept Soldier, who in his (the battalion commander's) opinion should be released from the Army as expeditiously as possible.  He possessed limited potential for further development and would become a liability if retained in the Army. 

12.  On 17 December 1973, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate.  On 16 January 1974, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time of his discharge shows that he was discharged for the good of the service with an Under Other Than Honorable Conditions characterization of service.  This form further confirms the applicant had completed a total of 11 months of creditable active military service and had 79 days of lost time due to AWOL and confinement.

13.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its fifteen (15) year statute of limitations. 

14.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, at the time an undesirable discharge was normally considered appropriate.
15.  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.

16.  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 contends that his discharge should be upgraded.

2.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of family problems.  Additionally, there is no evidence and the applicant has not provided sufficient evidence showing that he utilized the support channels available at his installation to resolve his family problems instead of going AWOL.

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily requested discharge from the Army under such circumstances.  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.

4.  There is no evidence in the available records, nor did the applicant provide documentation, to substantiate an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Based on his 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, the applicant is not entitled to either a general or an honorable discharge. 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__rtd___  __gjp___  __rmn___  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.



							Richard T. Dunbar
______________________
          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.