RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	20 March 2008  
	DOCKET NUMBER:  AR20070018147 


	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:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise 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, in effect, to have his discharge upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he is a proud American who made some mistakes mostly because of his alcoholism.  

3.  The applicant provides a self authored letter, and eight character reference statements 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.  On 1 May 1981, the applicant’s record shows that he reenlisted in the Regular Army for a period of 3 years, with 3 years of prior active honorable service from a previous enlistment.  The highest grade he attained during this enlistment was pay grade E-4. 

3.  On 15 August 1983, court-martial charges were preferred against the applicant for being AWOL from 25 June to 11 August 1983.  

4.  On 17 August 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of a discharge under other than honorable conditions (UOTHC) 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.  He also acknowledged that he understood 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 that he understood that he could encounter substantial prejudice in civilian life by reason of a discharge UOTHC.  The applicant submitted a statement in his own behalf.  He stated in effect, that he went AWOL for several reasons.  He was not working in his military occupational specialty (MOS) or his secondary MOS, and that demands were placed on him that he could not meet, because he did not know the job.  He asked his chain of command to move him to a different position and he was told that it was impossible.

5.  On 22 August 1983, the unit commander recommended approval of the applicant’s request for a discharge under the provision of Army Regulation 
635-200, chapter 10.  The reason for the recommendation was the applicant had no motivation for continued service and he would not respond to either counseling or rehabilitation.  

6.  On 23 August 1983, the separation authority approved the applicant’s request for discharge and directed that he be reduced to the grade of E-1 and issued a UOTHC Discharge Certificate.  

7.  On 29 September 1983, the applicant was discharged.  The separation document (DD Form 214) he was issued confirms he completed 2 years, 
3 months and 15 days of creditable active military service and he accrued 44 days of time lost due to being AWOL.  

8.  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.  

9.  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.

10.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be insufficient in merit.  There is no evidence in his military record nor has the applicant submitted any evidence that shows he was an alcoholic or that he entered into a drug or alcohol program.  The applicant stated that after returning to military control, he went AWOL because he was not working in his primary MOS or his secondary MOS and demands were placed on him that he could not meet. 

2.  The applicant’s character references were considered, however, the applicant’s good character and post service conduct is admirable, but these factors alone are not sufficiently mitigating to warrant an upgrade of his discharge.   

3.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  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.  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

___LDS__  __DL___  __EP____  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____
          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.