RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20070018999 


	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.




Director



Analyst

The following members, a quorum, were present:

	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, an upgrade of his discharge under other than honorable conditions (UOTHC).   

2.  The applicant states, in effect, that he was in the Indiana Army National Guard in 1979 through 1981, then he transferred to the Texas Army National Guard and served until 1989, he then transferred to the Active Guard Reserve (AGR) and served until 1995.  He states that he had extreme family problems and requested a deferment or a hardship discharge and that the highest rank that he achieved was sergeant pay grade E-5.  He adds that he will be sending certificates and his discharge document (NGB Form 22).  He also states he will be submitting awards and decorations, the Good Conduct Medal, and Noncommissioned Officer Evaluation Reports (NCOERs).

3.  The applicant provides 16 copies of certificates of completion of training and 
5 copies of certificates of commendations and achievements, one copy of his NCOER and a copy of his Good Conduct Medal 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 23 June 1994, the applicant was involuntarily ordered to active duty based on unsatisfactory participation in the USAR.  He had completed 14 years,
3 months and 11 days of prior inactive service.  He served in military occupational specialty (MOS) 62B (Construction Equipment Repairer), and the highest rank he attained was sergeant pay grade E-5.  

3.  The applicant’s military record shows that he was reported absent without leave (AWOL) from 15 September to 13 October 1995 and from 16 October 1995 until he was apprehended by civil authorities and returned to military control 
on 18 April 1997.  He had been AWOL for 533 days.  The applicant’s military record does indicate that he was having family problems; however, the details are missing from his record.   

4.  The applicant's Military Personnel Records Jacket (MPRJ) does not include a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, it does include a properly constituted separation document (DD Form 214) that shows he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  It also shows that at the time of separation, he had completed a total of 1 year, 6 months and 16 days of creditable active military service, and that he had accrued 561 days of time lost due to being AWOL.  The applicant’s discharge document shows that he was awarded the Good Conduct Medal, the National Defense Service Medal, the Armed Forces Reserve Medal, the Noncommissioned Officer’s Professional Development Ribbon with Numeral 2, the Army Service Ribbon and the Driver and Mechanic Badge with Driver-W Bar.  

5.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 trial by court-martial. 

6.  The same regulation states that an under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record.

7.  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.

8.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered.  Although, the applicant’s record indicates that he was having family problems, the details are missing from his military record.  Therefore, based on the facts of the case, the evidence presented is not sufficiently mitigating to support granting the requested relief.  

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge. 

4.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  The evidence shows the applicant voluntarily requested discharge to avoid a trial by court-martial that could have resulted in his receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance, and his short and undistinguished record of active duty service clearly did not support a general discharge or an honorable discharge at the time, nor does it support an upgrade now.  


6.  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

__x  _x__x 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.




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      CHAIRPERSON