RECORD OF PROCEEDINGS


	IN THE CASE OF:       
	 

	BOARD DATE:           30 August 2005                   
	DOCKET NUMBER:  AR20050001213


	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. Paul M. Smith

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Leonard G. 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, in effect, an upgrade of his undesirable discharge (UD). 

2.  The applicant states, in effect, he received an UD because he needed to take care of his widowed mother and disabled brother.  

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

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 22 July 1970.  The application submitted in this case is dated 
4 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 record shows he enlisted in the Regular Army and entered active duty on 10 January 1969.  He was trained in and awarded military occupational specialty (MOS) 67A (Aircraft Maintenance Crewmember), and the highest rank he attained while serving on active duty was private/E-2 (PV2).  

4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  The record reveals a disciplinary history that includes his conviction by a special court-martial (SPCM) and a total of 271 days of time lost due to being absent without leave (AWOL) on two separate occasions between 16 May 1969 and 7 June 1970.  

5.  On 20 June 1969, a SPCM found the applicant guilty of being AWOL from on or about 16 May through on or about 3 June 1969.  The resultant sentence included confinement at hard labor for 3 months (suspended) and a forfeiture of $73.00 per month for 3 months.  

6.  A Charge Sheet (DD Form 458) was prepared that preferred a court-martial charge against him for violating Article 85 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 29 September 1969 through on or about 8 June 1970.  

7.  On 1 July 1970, applicant consulted with 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.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

8.  In his request for discharge, the applicant also indicated that he understood that by requesting discharge, he acknowledged he understood that if his discharge request was approved, he could 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.   

9.  On 13 July 1970, the separation authority approved the applicant’s request for discharge and directed that he receive an UD, and that he be reduced to the lowest enlisted grade.  On 22 July 1970, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 
9 months and 15 days of creditable active military service, and that he accrued 271 days of time lost due to AWOL.  

10.  There is no indication in the record that the applicant applied to the 
Army Discharge Review Board (ADRB) for an upgrade of his discharge 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 UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he received an UD because he had to 
take care of his widowed mother and disabled brother was carefully considered.  However, the record shows the applicant’s mother was a widow at the time he voluntarily enlisted in the Army.  Further, there is no evidence of record, or independent evidence provided by the applicant, showing he was denied a hardship discharge, or that his presence at home was required to care for his mother and disabled brother.  As a result, this factor is not sufficiently mitigating to warrant an upgrade of his discharge at this late date.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  The record further confirms all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  

3.  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.  Further, the applicant’s discharge accurately reflects his short and undistinguished record of service.  

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 July 1970.  Therefore, the time for him to file request for correction of any error or injustice expired on 21 July 1973.  He failed to 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

___PMS_  __YM   __  __LGH__  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 M. Smith_______
		        CHAIRPERSON





INDEX

CASE ID
AR20050001213
SUFFIX

RECON

DATE BOARDED
2005/08/30
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
1970/07/22
DISCHARGE AUTHORITY
AR 635-200 C10
DISCHARGE REASON
In lieu of C-M
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.  189
110.0000
2.

3.

4.

5.

6.