RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20070018412 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Chester A. Damian

Member

Mr. Qawiy A. Sabree

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 undesirable discharge (UD), characterized as under other than honorable conditions (UOTHC), be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he had and has mental problems and needs his UD upgraded to honorable. 

3.  The applicant provides no additional documentation 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 6 September 1974.  He was trained as an Infantryman Indirect Fire Crewman, in military occupational specialty (MOS), 11C.  

3.  The applicant was convicted by a special court-martial on 13 May 1975 for being absent without leave (AWOL) from 10 February 1975 to 19 February 1975 and from 3 March 1975 to 17 March 1975.  His sentence consisted of a forfeiture of pay, hard labor without confinement for 60 days, and reduction to pay grade   E-1. 

4.  On 19 August 1975, the applicant was punished under Article 15, of the UCMJ (Uniform Code of Military Justice), for being AWOL from 21 July 1975 to 1 August 1975.  His punishment consisted of a forfeiture of pay and 45 days restriction and extra duty.



5.  The applicant underwent a mental status evaluation on 23 August 1975.  His mental status evaluation revealed a fully oriented alert individual, whose behavior was normal.  His mood was level, thinking process was clear, his thought content was normal, and his memory was good.  The impression section of the evaluation form indicated that he had no significant mental illness.  It was determined that he was mentally responsible and could distinguish right from wrong and adhere to the right.  He possessed sufficient mental capacity to understand and participate in board proceedings.  He met the retention requirements of Army Regulation 40-501, chapter 3.  

6.  On 17 September 1975, the applicant was punished under Article 15, of the UCMJ, for failing to go to his appointed place of duty twice on 8 September 1975. His punishment consisted of a forfeiture of pay and 7 days restriction and extra duty.

7.  On 17 September 1975, the applicant’s commander initiated action to separate him from the service under the provisions of AR 635-200, chapter 13, paragraph 13-5a, for misconduct.  He based his recommendation on the applicant’s two Article 15s, under UCMJ, and his special court-martial.  The applicant, acknowledged the notification on 18 September 1975 and after consulting with counsel, waived his rights and elected not to submit a statement in his own behalf. 

8.  On 3 October 1975, the separation authority approved the recommendation for the applicant's discharge and directed that he be furnished an UD.  The applicant was discharged on 23 October 1975.  He had a total of 9 months and 14 days of creditable service and 64 days of time lost. 

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

10.  Army Regulation 635-200 sets forth the policy and prescribes the procedure for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5a(1) provided for the separation of individuals for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  When separation for unfitness was warranted, an undesirable discharge was issued by the separation authority.



11.  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.

12.  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 discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation. 

2.  The type of separation directed and the reasons for that separation were appropriate considering all of the facts of the case.  There is no indication that the applicant’s request for discharge was made under coercion or duress. 

3.  There is no evidence in the applicant's records, and the applicant has provided no 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 claims that he had and has mental problems and needs his UD upgraded to honorable.  The evidence shows that the applicant underwent a mental status evaluation and was found to be mentally responsible.  He met the retention standards of Army Regulation 40-501, chapter 3, and possessed the mental capacity to understand and participate in board proceedings.  His mental evaluation indicated no significant mental illness at the time of his evaluation.  

5.  In view of the circumstances in this case, the applicant is not entitled to have his UD upgraded to honorable.  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

__JTM __  __CAD__  __QAS__   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.




___John T. Meixell    __
      CHAIRPERSON