RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 2 December 2003
         DOCKET NUMBER: AR2003088339


         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.

Mr. Carl W. S. Chun		Director
Mr. Richard P. Nelson		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Patrick H.McGann		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests upgrade of his dishonorable (sic) discharge to honorable.

2. The applicant states that he has attached a letter to his DD Form 149 (Application for Correction of Military Records) explaining the error or injustice in his records. However, the applicant’s DD Form 149 was received without an attached letter.

3. The applicant does not provide any documentation or evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of injustice that occurred on 21 December 1973. The application submitted in this case is dated 10 March 2003.

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 limitation 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 military records show he enlisted in the Army on 29 August 1967 for a period of 3 years. He was trained in Military Occupational Specialty (MOS) 76Y, Unit Supply Specialist. In August of 1969 he was awarded a primary MOS of 57F20, Memorial Activities Specialist. The applicant served in a variety of locations, to include a tour of duty in Vietnam, prior to being discharged under other than honorable conditions on 21 December 1973, in pay grade E-1.

4. On 25 February 1970, the applicant was convicted by a Summary Court-Martial of Absent Without Leave from 10 January 1970 until 4 February 1970. His sentence consisted of a reduction from pay grade E-4 to pay grade E-3 and a forfeiture of $144.00 per month for 1 month. Sentence was adjudged on 25 February 1970 and approved on 3 March 1970.

5. On 4 June 1970, nonjudicial punishment was imposed against the applicant for absenting himself, without authority, from his unit from 6 April 1970 until 2 June 1970. His punishment consisted of forfeiture of $100.00 per month for a period of 2 months.

6. On 14 December 1973, court-martial charges were preferred against the applicant for violation of Article 85 of the Uniform Code of Military Justice for “absenting himself, without authority, on or about 6 July 1971 and with intent to remain away therefrom permanently, from his organization, and did remain so absent until he was apprehended on or about 5 December 1973.” He was charged with a total of 879 days absent without leave. Trial by general court-martial was recommended.

7. On 17 December 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge. The applicant submitted a statement in his own behalf, wherein he stated that all he wanted was “out of the Army” so that he could look after his family.

8. The commander recommended that the applicant’s request for discharge be approved and that he be furnished an undesirable discharge.

9. On 20 December 1973, the separation authority approved the applicant’s request for discharge and directed that he be discharged for the good of the service under other than honorable conditions and furnished an Undesirable Discharge Certificate.

10. Accordingly, the applicant was discharged under other than honorable conditions on 21 December 1973 under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of court-martial. He had served exactly 2 years, 7 months and 27 days of total active service.

11. There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12. 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

13. Army Regulation 635-200, paragraph 3-7, 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. Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1. Court-martial charges were properly preferred against the applicant.

2. 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.

3. Considering all the facts of the case, the type of discharge directed and the reasons for separation were appropriate.

4. The applicant voluntarily requested separation from the Army to avoid trial by court-martial. In doing so, he admitted guilt to the stipulated offense. Additionally, the applicant requested a discharge to avoid the possibility of a punitive discharge and having a felony conviction on his records. There is no indication that the request was made under coercion or duress.

5. The applicant’s entire record of service was considered. There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

6. The reason for discharge and the characterization of service were both proper and equitable. Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his discharge under other than honorable conditions to honorable.

7. In order to justify correction of a military record the applicant must show, 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.

8. In view of the foregoing, there is no basis for granting the applicant's request.
9. Records show the applicant should have discovered the error or injustice now under consideration on 21 December 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired 3 years from that date. However, 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 file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__phm___ ___mhm_ ____fne_ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.




                  _________Fred N. Eichorn_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088339
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031202
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY,
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.