RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 October 2005
	DOCKET NUMBER:  AR20050000879 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Mark Manning

Chairperson

Mr. Larry C. Bergquist

Member

Ms. Carmen Duncan

Member

	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 that his undesirable discharge (UD) be upgraded.

2.  The applicant states that his father had a construction company in Drummond Island, Michigan, and he had a heart attack and was unable to work.  He applied for a hardship discharge to assist his father but was denied.  He went absent without leave (AWOL) to assist his father and remained AWOL for 3 months.  His father never recovered and died 10 years later.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred on 6 March 1975, the date of his discharge.  The application submitted in this case is dated 10 January 2005.  

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 military records show he entered active duty (AD) on 15 January 1974, as a rough terrain forklift and loader operator (62M).  He was promoted to pay grade E-2 on 7 April 1974. 

4.  Charges were preferred against the applicant on 29 January 1975, for being AWOL from 30 September to 28 October 1974, from 12 November 1974 to 26 January 1975, and for missing movement on 4 October 1974.

5.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows that he was AWOL from 30 September to 6 October 1974, (7 days) from 7 to 28 October 1974 (22 days), and from 12 November 1974 to 26 January 1975 (76 days).   



6.  On 31 January 1975, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged guilt of the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the VA if a discharge under other than honorable conditions were issued.  He also elected to submit a statement in his own behalf.
He stated that his primary reason for his request was that he was needed at home to assist in operation of his father business.  His father was a one-armed amputee below the elbow, had recently undergone a hernia operation, and had a continuing heart condition.

7.  On 20 February 1975, the separation authority approved the applicant’s request for discharge and directed that he be reduced to the pay grade of E-1 and furnished an undesirable discharge.

8.  The applicant was discharged on 6 March 1975 in the pay grade of E-1.  He had a total of 10 months and 7 days of creditable service during this enlistment and had 105 days of lost time due to AWOL.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for 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.

11.  Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

12.  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.  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.  There is no indication that the request was made under coercion or duress.  

2.  The type of separation directed and the reasons therefore were appropriate considering all of the available facts of the case. 

3.  The applicant alleges that his father had a heart attack and was unable to work, that he requested a hardship discharge and was denied, and that he remained AWOL for 3 months.  There is no evidence in the available records, and the applicant has provided no evidence, to support his allegation or to show that he requested a hardship discharge.  However, the evidence clearly shows that charges were preferred against him for being AWOL.  He has provided no evidence to show that his discharge was unjust and that it should be upgraded.

4.  There is no evidence in the applicant's records, and the applicant has provided none, to show that he applied for an upgrade of his discharge to the ADRB within its 15-year statute of limitations.

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

___MM___  ___CD__  ____LB_  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.




_        Mark D. Manning_____
          CHAIRPERSON




INDEX

CASE ID
AR20050000879
SUFFIX

RECON

DATE BOARDED
20051004
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19750306
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.