RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2007 DOCKET NUMBER: AR20060010794 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. X 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 a more favorable discharge. 2. The applicant states, in effect, that he requested a discharge under chapter 13 but found that it was not what he thought it was and that he was forced into accepting a discharge under chapter 10; however, it turned out that it was not what he was told it would be and his commander told him that he would see him in Hell before he would allow him to stay in the service. 3. The applicant provides a copy of his report of separation (DD Form 214). CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 14 July 1975. The application submitted in this case is dated 18 July 2006. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant’s records, though very limited, show that he enlisted in the Regular Army in Louisville, Kentucky on 30 October 1973. He completed his training and was transferred to Fort Campbell, Kentucky for assignment to an aviation company as a cook. 4. He went absent without leave (AWOL) on 15 April 1975 and remained absent until he was returned to military control on 13 June 1975 and charges were preferred against him for the AWOL offense. 5. The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records; however, his DD Form 214, which was authenticated by the applicant at the time of his discharge shows that he was discharged under other than honorable conditions on 14 July 1975, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. His request for discharge was approved on 7 July 1975 and he had served 1 year, 6 months and 17 days of total active service and had 59 days of lost time due to AWOL. 6. There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a voluntary request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions was at that time and is still normally considered appropriate. DISCUSSION AND CONCLUSIONS: 1. In the absence of evidence to the contrary, it must be presumed that 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. 2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances. 3. The applicant’s contentions have been considered by the Board. However, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service. 4. A discharge under chapter 10, in lieu of trial by court-martial is a voluntary request for discharge on the part of the service member and is normally requested in order avoid a felony conviction that may result in a trial by court-martial. 5. 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. 6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 14 July 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 13 July 1978. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __X___ ___X_ __X __ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ______X_______ CHAIRPERSON INDEX CASE ID AR20060010794 SUFFIX RECON YYYYMMDD DATE BOARDED 20070517 TYPE OF DISCHARGE (UD) DATE OF DISCHARGE 1975/07/14 DISCHARGE AUTHORITY AR635-200/ch10 . . . . . DISCHARGE REASON Gd of svc BOARD DECISION (DENY) REVIEW AUTHORITY ISSUES 1.144.7000 689/a70.00 2. 3. 4. 5. 6.