RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 March 2004
         DOCKET NUMBER: AR2003090858


         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Ms. Linda D. Simmons		Member
Mr. Robert J. Osborn		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 that his discharge be upgraded.

2. The applicant states that he believes that his discharge is unjust because his former company commander took a dislike to him. He states that he has no good reason for not having previously applied for a correction. He further states that he was proud of having served and now that he is nearing retirement he requests that the action of a young and foolish man be forgiven.

3. The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an alleged injustice which occurred on 3 April 1975. The application submitted in this case is dated 24 April 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 he entered active duty on 25 May 1972 at age 18. He completed training and served in the military occupational specialty (MOS) 63C (track vehicle mechanic).

4. He was in civilian confinement from 13 June through 24 June 1973. The specifics of this incarceration are not of record.

5. On 2 November 1973 the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disrespectful language toward a commissioned officer. His punishment consisted of a reduction to pay grade E-2 and forfeiture of $50 per month for one month.

6. On 15 May 1974 he received NJP for being absent without leave (AWOL) from 16 April 1974 through 15 May 1974. His punishment consisted of a reduction to pay grade to E-1, forfeiture of $150 per month for two months, 45 days restriction, and 45 days extra duty.

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7. The applicant’s DA Form 2-1 (Personnel Qualification Record) shows that he was promoted to pay grade E-3 on 7 October 1974. He was again reduced to E-2 on 13 January 1975 and to E-1 on 27 January 1975.

8. His record does not contain any documentation related to either of his two January 1975 reductions in grade.

9. The applicant’s records do not contain any documentation surrounding the administrative action related to his separation. A copy of a 30 January 1975 separation medical examination indicates he was being processed for separation under chapter 10. He was found physically qualified for duty and/or separation.

10. The applicant’s DD Form 214 (Report of Separation) shows that he was discharged for the good of the service in lieu of trail by court-martial under the provisions of Army Regulation 635-200, Chapter 10, on 3 April 1975. He also declined, in writing, a separate document explaining the narrative reason for his separation, a narrative description of the authority for his separation, and his reenlistment code.

11. Although the discharge administrative documentation is not of record, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. In connection with such a discharge, the applicant would have had to have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Procedurally, the applicant would be required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial. Included in the Chapter 10 requirements at that time was a requirement that the applicant admitted guilt to the stipulated offenses under the UCMJ or lesser-included charges.

12. There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statute of limintations.

13. 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.

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DISCUSSION AND CONCLUSIONS:

1. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

2. The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant was 18 years of age, had satisfactory completed training and had served for over a year before any negative incidents are documented. His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 April 1975, the date of his discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 April 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

__LDS__ __RJO __ __RWA _ 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.

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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.



                  _ Roger W. Able________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090858
SUFFIX
RECON
DATE BOARDED	20040318
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	145 chapter 10 upgrade
2.
3.
4.
5.
6.