RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	 

	BOARD DATE:           30 August 2005     
	DOCKET NUMBER:  AR20050000998


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Paul Smith

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Leonard Hassell

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 be upgraded to honorable.

2.  The applicant states, in effect, the recruiter should have never passed him for enlistment because he could not spell.  He contends he was too embarrassed to let anyone know so he went absent without leave (AWOL).

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 March 1975.  The application submitted in this case is dated 8 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 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 enlisted on 14 May 1974 for a period of 2 years.  

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was AWOL from 14 November 1974 to 15 November 1974 (2 days) and from 
25 November 1974 to 16 January 1975 (63 days).   

5.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 (Report of Separation from Active Duty) shows that he was discharged with an undesirable discharge on 20 March 1975 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 8 months and 2 days of creditable active service with 65 days of lost time due to AWOL.

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

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge might at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate. 

8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

2.  Records show the applicant should have discovered the alleged injustice now under consideration on 20 March 1975; therefore, the time for the applicant to file a request for correction of any injustice expired on 19 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

PS_____  YM_____  LH______  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.




		___Paul Smith_________
		        CHAIRPERSON





INDEX

CASE ID
AR20050000998
SUFFIX

RECON

DATE BOARDED
20050830
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19750320
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.