RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	3 April 2008  
	DOCKET NUMBER:  AR20070018385 


	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

Md. Joyce Wright

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jeffrey Redmann

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, that his discharge, characterized as under other than honorable conditions (UOTHC), be change to an honorable discharge or general, under honorable conditions, discharge.

2.  The applicant states, in effect, that he was young, away from home for the first time, and raised by two good women, his mother and grandma.  He states that the death of his father, whom he was very close to, occurred while he was on active duty.  He elaborated on the sequence of events that occurred and led up to his father's death.  He spoke of his military experiences and he prays that his discharge will be considered for an upgrade.

3.  The applicant provides a copy of his DD Form 214 in support of his request.

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 he enlisted in the Regular Army on 27 May 1982, at the age of 18 years, 4 months, and 21 days.  His date of birth is 7 January 1964.  He was scheduled for training in military occupation specialty (MOS), 63B, Light Wheel Vehicle and Power Generator Mechanic.  

3.  The applicant departed absent without leave (AWOL) on 18 October 1982 while attending advance individual training (AIT) at Fort Jackson, South Carolina.

4.  Charges were preferred against the applicant on 28 January 1983 for being AWOL from 18 October 1982 to 23 November 1982 and from 24 November 1982 to 25 January 1983.


5.  On 2 February 1983, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Department of Veterans Affairs (DVA) if a discharge characterized as UOTHC were issued.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 1 March 1983, the separation authority approved the applicant's request for discharge and directed that he be furnished an UOTHC discharge.  

7.  The applicant was discharged on 14 March 1983.  He had a total of 6 months and 1 day of net active service.

8.  On 13 January 1988, the ADRB denied the applicant's petition to upgrade his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for 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.  A discharge under other than honorable conditions is normally considered appropriate.

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.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.



DISCUSSION AND CONCLUSIONS:

1.  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 or duress.  

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant stated, in effect, that he was a young man, at the time of his entry on active duty.  It is noted that he was 18 years, 4 months, and 21 days of age at the time of his entry on active duty and was 19 years, 2 months, and 7 days of age on the date of his discharge.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

5.  The applicant's contentions were considered; however, they do not support a change of his UOTHC discharge. 

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CD____  __LD___  __JR____  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.




_____Carmen Duncan______
          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.