RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: December 9, 2003
         DOCKET NUMBER: AR2003089920

         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. Klaus P. Schumann		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Eloise C. Prendergast		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 his record of Absent Without Leave (AWOL) and his Special Court Martial (SPCM) were only minor offenses and under current Army standards he would not have received an UD. He further states that his conduct and efficiency ratings, behavior, and proficiency were "mainly pretty good." Also, he contends that he has been a good citizen since his discharge.

3. The applicant provides the following documents in support of his application; a copy of his separation document (DD Form 214), dated 6 Sep 72; a college transcript, dated 8 March 1994; a character reference from the Puerto Rico Police Department, dated 24 January 2002; a letter of recommendation from the Rafael Aparicio Jimenez School, dated 4 February 2002; a letter of recommendation from a church pastor, dated 28 January 2002; a Scholastic Security training completion certificate, dated 7 November 1981; a participation certificate in the Program for a School Zone Free of Drugs and Firearms and Scholastic Security, dated 22 July 1997; and a medical record consultation sheet (Standard Form [SF] 513).

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on 6 September 1972. The application submitted in this case is dated 13 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 initially entered active duty on 5 October 1970. He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

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4. The record also shows that during the enlistment under review, 5 October 1970 through 6 September 1972, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (USMJ) on the following seven occasions for the offenses indicated: 15 November 1970, for failing to be at his appointed place of duty; 27 April 1971, for absenting himself from his organization without proper authority; 1 November 1971, for absenting himself from his organization without proper authority, for failing to be at his appointed place of duty, for willful disobedience of a lawful order from a superior and for missing a unit movement; 23 December 1971, for failing to be at his appointed place of duty; 24 December 1971, for willful disobedience of a lawful order, for leaving the restricted limits of the company area, for willful disobedience of a lawful order from a superior and for failing to be at his appointed place of duty; 24 February 1972, for willful destruction of military property, for willful disobedience of a lawful order from a superior and for wrongful communication of a threat to a superior; and 3 April 1972, for failing to be at his appointed place of duty.

5. The applicant's Enlisted Qualification Record (DA Form 20) shows, in Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS), that the applicant had two separate AWOL periods between
1 December 1971 and 1 June 1972. This resulted in 21 days of time lost.

6. The applicant's DA Form 20 also shows in Item 33 (Appointments and Reductions) that he was promoted to the rank of Private First Class (PFC) on
26 May 1971, and that this is the highest rank he attained while serving on active duty.

7. The specific facts and circumstances surrounding the applicant's discharge processing are not on file. However, the record does include a properly constituted DD Form 214 that contains the authority and reason for the applicant's discharge. The applicant authenticated this document with his signature on the date of his separation.

8. The applicant's DD Form 214 confirms that on 6 September 1972, the applicant was separated under the provisions of chapter 10 Army Regulation 635-200, for the good of the service, in lieu of court martial and he received an UD. This document also shows that at the time of his separation he had completed 1 year, 10 months and 11 days of creditable active military service. It also verifies that he had accrued a total of 21 days of time lost due to AWOL.

9. The applicant provides several character references attesting to his good conduct and citizenship since his separation from active duty.


10. There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

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. 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. The current regulatory policy for separation under these provisions remains relatively the same. A discharge under other than honorable conditions is still normally considered appropriate under current standards.

DISCUSSION AND CONCLUSIONS:

1. During the enlistment under review, 5 October 1970 through 6 September 1972, the applicant accepted NJP on seven separate occasions for a myriad of infractions, and he went AWOL on two separate occasions totaling 21 days. Therefore, the character of discharge is determined to be commensurate with his overall record of military service, and would still be appropriate under current regulatory standards.

2. The character references the applicant submitted as evidence to show his good conduct since his separation from active duty were admirable and considered. However, post service good conduct alone is not a basis for upgrading a discharge.

3. The applicant's record is void of the specific facts and circumstances surrounding his discharge processing. However, it does confirm that he was charged with an offense that was punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. It also contains a properly constituted DD Form 214, which identifies the reason and characterization of his discharge. Therefore, government regularity is presumed in the discharge process.

4. The record confirms that the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of court-martial. In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 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 under the UCMJ.
5. In the absence of information to the contrary, it is presumed that all requirements of law and regulation were met and the right of the applicant were fully protected throughout the separation process.

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.

7. Records show the applicant should have discovered the error or injustice now under consideration on 6 September 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 5 September 1975. 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

_MM___ __EP__ __RJW__ 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.




                  Mark D. Manning
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089920
SUFFIX
RECON
DATE BOARDED	2003/12/09
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19720906
DISCHARGE AUTHORITY	AR 635-200, Chapter 10 . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.AdmDisch	144.0000.0000
2.
3.
4.
5.
6.