RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	 

	BOARD DATE:           15 September 2005  
	DOCKET NUMBER:  AR20050001901


	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. John Slone

Chairperson

Mr. Eric Andersen

Member

Ms. Carol Kornhoff

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, an undesirable discharge is too harsh for the offense he committed.  He contends he did stockade time and forfeited pay which should have been sufficient punishment and that an undesirable discharge punishes him for life.  He states he was a rebellious 17-year old and was homesick, so he went absent without leave (AWOL).  He indicates he needs Department of Veterans Affairs (DVA) care and would like his undesirable discharge off his records.

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 9 October 1970, the date of his separation from active duty.  The application submitted in this case is dated 31 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 was born on 6 January 1952.  He enlisted on 30 September 1969 for a period of 3 years.  He successfully completed basic combat training.  

4.  While in advanced individual training (AIT), on 13 November 1969, nonjudicial punishment was imposed against the applicant for being AWOL from 
3 November 1969 to 12 November 1969.  His punishment consisted of a forfeiture of pay and correctional custody for 9 days.   

5.  The applicant did not complete advanced individual training.

6.  On 22 April 1970, contrary to his pleas, the applicant was convicted by a special court-martial of four specifications of being AWOL (from 9 December 1969 to 20 December 1969; 25 December 1969 to 31 December 1969; 
14 January 1970 to 23 January 1970; and 28 February 1970 to 11 March 1970).  He was sentenced to be confined at hard labor for 4 months and to forfeit $76 per month for 4 months.  On 29 April 1970, the convening authority approved the sentence. 

7.  The applicant went AWOL on 27 July 1970 and returned to military control on 7 August 1970.  He went AWOL again on 12 August 1970 and returned to military control on 14 August 1970.  On 2 September 1970, charges were preferred against the applicant for the AWOL charges.  Trial by special court-martial was recommended.

8.  On 4 September 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit a statement in his own behalf.  

9.  On 28 September 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued an undesirable discharge.

10.  Accordingly, the applicant was discharged with an undesirable discharge on 
9 October 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 4 months and 22 days of total active service and had 223 days of lost time due to AWOL and confinement.

11.  On 8 November 1977, the Army Discharge Review Board (ADRB) reviewed the applicant's case under the Special Discharge Review Program, determined he was properly discharged, and denied his request for a discharge upgrade.

12.  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. 

13.  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.

14.  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.

15.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.   
 
DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, he successfully completed basic training.  

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

3.  The applicant’s record of service included one nonjudicial punishment, one special court-martial conviction, and 223 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

4.  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.    
  
5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 8 November 1977.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 7 November 1980.  The applicant did not file within the ABCMR's 3-year statute of limitations and has not provided 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

JS_____  EA_____  CK______  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.




		__John Slone____________
		        CHAIRPERSON


INDEX

CASE ID
AR20050001901
SUFFIX

RECON

DATE BOARDED
20050915
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19701009
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.