RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 9 March 2004
         DOCKET NUMBER: AR2003088912

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Ms. Shirley L. Powell		Member
Ms. Barbara J. Ellis		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, in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2. The applicant states, in effect, that the good he has done since leaving the service should be considered. He claims that he joined the Army after being laid off from his job in 1970. He indicates that he was immature at the time and he was experiencing personal and financial problems that were impacting the wife and son he left behind. On top of these problems, he also had a problem with alcohol. He states that over the last 30 years, he has matured, been gainfully employed, and raised four children who have never been in trouble with the law. He states that since his discharge, he has tried to be a good neighbor, citizen, and employee. He also claims that he has been active in his community and a member of Alcoholics Anonymous, where he has helped many to sobriety, since 1980.

3. The applicant provides a self-authored statement and five character references from friends and employers in support of his application.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of a perceived error or injustice which occurred on 29 September 1975. The application submitted in this case is dated 24 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 record shows that he entered the Army on 26 October 1970. He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman), and the highest rank he attained while serving on active duty was private/E-2. The record shows that during his tenure on active duty, the applicant earned the National Defense Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Expert Marksmanship Qualification Badge with Pistol and Machine Gun Bars.

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4. On 27 August 1975, a charge sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ), by being absent without leave (AWOL), from on or about 25 September 1971 to on or about
1 January 1972 and from on or about 2 January 1972 to on or about 18 August 1975.

5. On 3 September 1975, the applicant consulted 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 UD, and of the procedures and rights that were available to him. After receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

6. In his request for discharge, the applicant acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge. He also indicated that he understood that by requesting discharge, he would 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.

7. On 8 September 1975, the separation authority approved the applicant’s request for discharge and directed that he receive an UD and be reduced to the lowest enlisted grade. On 29 September 1975, the applicant was discharged accordingly.

8. The DD Form 214 the applicant was issued on the date of his discharge confirms that he completed a total of 1 year and 11 days of creditable active military service and that he had accrued a total of 397 days of time lost prior to his normal expiration of term of service (ETS) and 1026 days subsequent to his normal ETS.

9. There is no evidence showing that the applicant submitted a request for an upgrade to his discharge to the Army Discharge Review Board (ADRB) within its 15 year statute of limitations.

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10. 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 UD.

DISCUSSION AND CONCLUSIONS:

1. The applicant contentions that he was immature and had family and alcohol related problems at the time of his discharge were carefully considered. However, there is no evidence of record that shows these factors significantly contributed to his misconduct.

2. The applicant’s excellent post service conduct, as attested to in the character references provided, was also carefully considered. However, while admirable, this factor alone does not provide a basis for an upgrade of the applicant’s discharge.

3. The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and after consulting legal counsel, he voluntarily requested discharge, in lieu of trial by court-martial. Lacking evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge appears to accurately reflect his short and undistinguished record of service.

4. 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.

5. The evidence of record shows the applicant should have discovered the perceived error now under consideration on 29 September 1975, the date of his discharge. Therefore, the time for him to file a request for correction of any error or injustice related to this issue expired on 28 September 1978. 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

_ SLP___ _BE___ __SAC ___ DENY APPLICATION

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.




                  Samuel a. Crumpler
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088912
SUFFIX
RECON
DATE BOARDED	2004/01/09
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1975/09/29
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 394	144.0143
2.
3.
4.
5.
6.