RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 March 2008
	DOCKET NUMBER:  AR20070017210 


	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 had child care problems and was locked up by federal agents because of those problems.  He also states that he should have been given a hardship discharge because he had to leave the Army and take care of his wife and daughter.  

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  Original National Rifle Association (NRA) Membership Card, valid through 30 November 2010, and a copy of NRA Membership Card, valid through 30 November 2011.

	b.  Original and a copy of Fraternal Order of Police Associate Membership Card, Lodge Number 5, valid through December 2007.

	c.  Original and a copy of Fraternal Order of Police Associate Membership Card, Lodge Number 109, valid through 31 December 2007.

	d.  Copies of Membership Cards, Retired Police, Fire, and Prison Guard Association of Philadelphia, Pennsylvania, for the years 2004, 2005, 2006, and 2007.

	e.  Copy of Pennsylvania Driver’s License, dated (issued on) 27 August 2007.

	f.  Copy of Pistol Range Membership Card, Philadelphia, Pennsylvania, valid through 6 April 2008.

	g.  Copy of Social Security Card.

	h.  Copy of Pennsylvania State Horse Racing Commission Membership Card, valid through 28 February 2010.

	i.  Miscellaneous business cards for a member of the Veterans Administration, two Federal Bureau of Investigation (FBI) Special Agents, and an officer of the Philadelphia Police Department.  


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 March 1970 for a period of 2 years.  He completed basic combat training at Fort Bragg, North Carolina, on 13 June 1970, and proceeded to Fort Leonard Wood, Missouri, on 14 June 1970, to attend advanced individual training (AIT) for military occupational specialty (MOS) 12A (Pioneer).

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

4.  On 1 June 1970, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his required place of duty on or about 29 May 1970.  His punishment consisted of forfeiture of $24.00 pay per month for one month, 14 days of extra duty, and 7 days of restriction.  He appealed his punishment to the next higher commander on 1 June 1970; however, the higher commander denied his appeal on 2 June 1970.

5.  The applicant’s records show that while still attending AIT, the applicant departed his unit in absent without leave (AWOL) status on 4 August 1970 and was subsequently dropped from the Army rolls (DFR) on 2 September 1970.  He returned to his unit on 7 September 1970. 

6.  On 25 September 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being AWOL during the period on or about 4 August 1970 to on or about 7 September 1970.  His punishment consisted of forfeiture of $50.00 pay per month for two months, 30 days of restriction, and 30 days of extra duty.  

7.  On 8 October 1970, the applicant departed his unit in AWOL status.  On the same date, his immediate commander published a memorandum indicating that the applicant had not previously indicated that he had any personal problems or difficulties which may have influenced his decision to go AWOL.  The applicant returned to his unit on 31 October 1970.

8.  On 11 November 1970, he departed his unit again in AWOL status and was subsequently reported DFR on 16 November 1970.  He was apprehended by civil authorities in Philadelphia, Pennsylvania, and was returned to military control at Fort Meade, Maryland, on 11 August 1974, and placed in a personnel control facility.  

9.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, shortly after his confinement, the applicant was informed that his case was referred to trial by Court-Martial.  

10.  On 23 August 1974, the applicant’s Defense Counsel requested a delay in judicial proceedings to allow for the applicant’s discharge under chapter 10 of Army Regulation 635-200 (Personnel Separations). 

11.  On 23 September 1974, by memorandum, the Officer In Charge (OIC), Headquarters, Fort Meade, Maryland, informed the applicant that the reason for his separation from active duty on 27 September 1974 was due to conduct triable by Court-Martial.

12.  The applicant’s DD Form 214 (Report of Separation from Active Duty) he was issued at the time of his discharge shows he was discharged on 27 September 1974, in accordance with chapter 10 of Army Regulation 635-200, with an Under Conditions Other Than Honorable Discharge character of service. The form further shows that the applicant had completed 6 months and 25 days of creditable military service and had 563 days of lost time due to AWOL prior to his expiration of his term of service (ETS) and 865 days of lost time due to AWOL subsequent to normal ETS. 

13.  The applicant submitted membership cards in various organizations to include the National Rifle Association; the Fraternal Order of Police; the Retired Police, Fire, and Prison Guard Association of Philadelphia, Pennsylvania; and the Pennsylvania State Horse Racing Commission as a testimony of his good standing in the city of Philadelphia.  
14.  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 that Board’s 15 year statute of limitations. 

15.  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, a discharge under other than honorable conditions is normally considered appropriate.

16.  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.

17.  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.

18.  Chapter 6 of Army Regulation 635-200, in effect at the time, prescribed the criteria and procedures and provided authority for the separation of enlisted personnel from active military service because of dependency or hardship.  It stated, in pertinent part, that a hardship exist when in circumstances not involving death or disability of a member of the enlisted person's family, his separation from the Service would have materially affected the care or support of his family by alleviating undue and genuine hardship.  Separation from the service of enlisted personnel because of dependency or hardship was granted when the following circumstances existed: (1) Conditions have arisen or have been aggravated to an excessive degree since entry on active duty; (2) Conditions were not of a temporary nature; (3) Every reasonable effort had been made by the enlisted person to alleviate the dependency or hardship conditions without success; and (4) Discharge or release from active military service of the enlisted person was the only readily available means of eliminating or materially alleviating the dependency or hardship conditions. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s involvement and membership in the various organizations and his association with law enforcement agencies in his community are noted.  Unfortunately, his post-service achievements and dedication to his community, are insufficient to grant him relief in this case.  

2.  There is no evidence in the available records and the applicant did not provide any evidence that shows he was undergoing any family problems or hardship during his military service.  Additionally, there is no evidence that he addressed such problems with his chain of command or made any efforts through any of the support channels available at his duty location at the time to alleviate the alleged hardship.

3.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  It appears that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were presumably met, and the rights of the applicant were presumably fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on his repeated 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.