RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070018841 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 be upgraded to honorable.   

2.  The applicant states, in effect, that he enjoyed the time he served in the United States Army.  He received awards for marksmanship.  He was young, went out with his peers, and went absent without leave (AWOL).  He further states that going AWOL was a stupid act that he now regrets, and wishes that he had stayed in the service.

3.  The applicant provides a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).

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 16 March 1972, the applicant enlisted in the Regular Army for 2 years.  He was assigned to Fort Leonard Wood, Missouri for basic combat training. 

3.  On 9 June 1972, the applicant was convicted by special court-martial of assault.  His sentence consisted of a forfeiture of $50.00 pay per month for 
3 months.  

4.  On 27 June 1972, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for threatening to beat a noncommissioned officer.  The punishment included a forfeiture of $55.00 pay per month for 1 month, and 14 days restriction and extra duty.

5.  On 10 August 1972, the applicant accepted NJP for AWOL (3 days).  The punishment included reduction to private, pay grade E1, and a forfeiture of $45.00 pay per month for 1 month.

6.  On 15 August 1972, the applicant accepted NJP for willful disobedience of a lawful order.  The punishment included a forfeiture of $90.00 pay per month for 
2 months.
 
7.  On 28 August 1972, the applicant was assigned to Fort Ord, California, for advanced individual training.

8.  On 30 August 1972, the applicant accepted NJP for AWOL (1 day).  The punishment included an oral reprimand, a forfeiture of $50.00 pay per month for 1 month, and 7 days extra duty and restriction.

9.  On 26 September 1972, charges were preferred under the Uniform Code of Military Justice for violation of Article 134, by being intoxicated on duty; for having an unclean uniform (two occasions); and for communicating a threat to two noncommissioned officers; for violation of Article 92, by failing to obey a lawful general regulation by not having a clean shaven face; and for violation of Article 86, by failing to go to his appointed place of duty.

10.  On 10 October 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

11.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that 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.   



12.  On 8 November 1972, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 15 November 1972, the applicant was discharged accordingly.  He had completed a total of 6 months and 29 days of creditable active military service and accrued 31 days of lost time.

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

14.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

15.  The UCMJ provides for a maximum punishment of a punitive discharge for violation of Article 92, failure to obey a lawful general order or regulation; and for violation of Article 134, for communicating a threat.

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 discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

 __LMD__  __JRM___  __JTM _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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




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.