RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070018857 


	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

Mrs. Nancy L. Amos

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 that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

2.  The applicant states that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge; his average conduct and efficiency ratings/behavior and proficiency marks were good or pretty good; he had a prior honorable discharge; he has been a good citizen since his discharge; his ability to serve was impaired because of marital and family and child care problems; personal problems impaired his ability to serve; he tried to serve and wanted to, but just could not or was not able to; and he tried to apply for a hardship discharge, but was unfairly told to forget it.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) for the period ending 27 July 1977; two character references; a work history reference; and a church information reference.

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 enlisted in the Regular Army on 28 April 1972.  He completed basic training and advanced individual training and was awarded military occupational specialty 94B (Cook).

3.  On 9 July 1974, the applicant was honorably discharged.  He immediately reenlisted on 10 July 1974.


4.  On 7 January 1977, the applicant was convicted, contrary to his plea, by a general court-martial of being absent without leave (AWOL) from on or about    18 June 1976 to on or about 3 August 1976.  The convening authority approved a sentence of reduction to Private First Class, E-3, and a forfeiture of  $100.00 pay per month for six months.  

5.  On 25 May 1977, court-martial charges were preferred against the applicant for being AWOL from on or about 5 April 1977 to on or about 25 May 1977.

6.  On 26 May 1977, court-martial charges were preferred against the applicant for two specifications of failing to go to his appointed place of duty.

7.  On 27 May 1977, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement in his own behalf.

8.  On 1 June 1977, the applicant completed a separation physical and was found qualified for separation.

9.  On 13 June 1977, the appropriate authority approved the applicant’s request and directed he receive a discharge UOTHC.

10.  On 27 July 1977, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed a total of 4 years, 5 months, and   20 days of creditable active service and had 283 days of lost time (AWOL and confinement).

11.  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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  

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.  

13.  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.

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.  He had an opportunity to make a statement when he requested discharge at which time he could have raised issues of personal/family problems in mitigation, yet he failed to do so.  There is no evidence of record and he provides no evidence to show that he applied for a hardship discharge but was unfairly told to forget it.

2.  The fact that the applicant had previously served over 2 years of honorable service indicates that he should have known what the Army’s standards of conduct were.  That honorable service was recognized with his honorable discharge of 9 July 1974.

3.  Earlier in the applicant’s second enlistment he was court-martialed for being AWOL and therefore knew there would be consequences for such misconduct.  He chose to request an administrative discharge rather than risk the consequences of a second court-martial.  

4.  The applicant’s letters of support have been considered; however, considering the overall quality of his service during his second enlistment the characterization of his service as UOTHC was and still is appropriate. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __lmd___  __jrm___  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




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.