RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20060015299 


	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.




Acting Director



Analyst

The following members, a quorum, were present

Chairperson

Member

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.

2.  The applicant states, in effect, that his recruiter told him that he could receive training as a mechanic if he enlisted in the Army.  After basic training he was put into an infantry company instead of being sent to mechanic training.  During infantry training, he did his best to follow orders and cooperate.  It seemed the harder he tried, the more he failed and that he was under a tremendous pressure and became unable to cope with the situation.  He ended up using drugs and alcohol in order to cope.  At that time he was in a state of deep depression and was unable to understand the things that were going on.  

3.  The applicant states "Due to stress and my addiction, I went AWOL on numerous occasions.  When I would return, the situation would get worse."  He has battled his addiction since his discharge and has been struggling to get his life back to normal.  He is currently receiving services from the Division of Vocational Rehabilitation in applying for Social Security benefits and assisting him in getting his discharge upgraded to be eligible for medical benefits.

4.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) with the period ending 22 January 1975; a self-authored statement, dated 10 August 2006; an undated DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); a letter from JOBS Etc., Incorporated, dated 25 August 2006; a State of Washington, Department of Social and Health Services letter, dated 2 August 2006; a two page Triumph Treatment Services Assessment Summary and Recommendation, dated 2 November 2005; and a 10 page Psychological Evaluation, dated 
16 December 2005.
 
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 22 January 1975.  The application submitted in this case is dated 25 October 2006.

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.  A DA Form 3286-49-R (Statement for Enlistment) dated 26 March 1972 shows that the applicant selected the unit of choice option for his enlistment with assignment to the 9th Infantry Division.  The document further shows that his training would be in Army Career Group 11 (Infantry), 11 (Armor), or 13 (Field Artillery).

4.  The applicant enlisted in the Regular Army on 30 May 1972 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

5.  On 27 June 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the periods 17 May 1973 through 22 May 1973 and 30 May 1973 through 17 June 1973.

6.  On 19 September 1973, the applicant was convicted, contrary to his pleas, by a special court-martial of being AWOL for the period from 30 July 1973 through 13 August 1973.  His sentence consisted of confinement at hard labor for 
30 days and a forfeiture of $75.00 per month for three months.

7.  On 9 April 1974, the applicant was convicted, pursuant to his pleas, by a special court-martial of being AWOL for the periods 25 October 1973 through 
13 November 1973 and 26 November 1973 through 28 November 1973.  His sentence consisted of confinement at hard labor for 45 days and a forfeiture of $200.00 per month for two months.

8.  Records show that the applicant was AWOL for the periods 1 July 
1974 through 9 July 1974, 1 August 1974 through 9 September 1974, and 4 November 1974 through 15 January 1975.

9.  The court-martial charge sheet is not available.

10.  The applicant's request for discharge for the good of the service packet is not available.

11.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 show that he was discharged on 22 January 1975 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of "Conduct triable by court-martial."  He was discharged with an undesirable discharge and a characterization of service as under other than honorable conditions after completing a total of 1 year, 10 months, and 7 days of creditable active service with 286 days lost due to AWOL and confinement.

12.  The applicant submitted a 10 page Psychological Evaluation, dated 
16 December 2005.  This document shows he has problems with anxiety and depression and the avoidant personality.

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.  At the time, an undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7a, 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.  

15.  Army Regulation 635-200, paragraph 3-7b, 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.  The applicant contends that his recruiter told him that he could receive training as a mechanic if he enlisted in the Army.  Evidence of record shows that the applicant selected unit of choice option for his enlistment with assignment to the 9th Infantry Division and that his training would be in Army Career Group 
11 (Infantry), 11 (Armor), or 13 (Field Artillery).  There is no evidence in the available records and the applicant has not provided evidence that shows he was told he would receive training as a mechanic.  Therefore, there is no basis for this argument.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show that he received one Article 15, two special courts-martial, and had eight instances of AWOL.  He had completed 1 year, 
10 months, and 7 days of creditable active service before his separation with a total of 286 lost days due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a honorable or general discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 January 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
21 January 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

__XXX__  ___XXX___  __XXX___  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.




_   __ Eric N. Andersen      _
          CHAIRPERSON



INDEX

CASE ID
AR20060015299
SUFFIX

RECON

DATE BOARDED
17 MAY 2007
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
144.7900.0000
2.

3.

4.

5.

6.