RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 8 February 2007
DOCKET NUMBER: AR20060008316
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. Dean L. Turnbull
Analyst
The following members, a quorum, were present:
Mr. Jeffrey C. Redmann
Chairperson
Mr. David K. Haasenritter
Member
Mr. Ronald D. Gant
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, in effect, his under other than honorable conditions discharge be upgraded to honorable.
2. The applicant states, in effect, that while he was in the military, he was under a lot of stress, and he was young and confused, so he did not realize what he was doing.
3. The applicant provides a written statement in which he indicates, in effect, he is now fifty-six years old with a three year old son, which he would like to show his honorable discharge certificate. He is not asking for benefits he just wants to remove the black mark in his life because he cannot get a job or a permit for a gun. He further states this has been the only problem in his life and he loves his country, he is sorry for the desertion, and at his age he has already paid for his actions in the Army.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged injustice which occurred on 24 May 1977, the date he was discharged from active duty. The application submitted in this case is dated 2 June 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 applicants failure to timely file.
3. The applicant entered active duty on 14 March 1975. After completion of basic combat training and advanced individual training, he was awarded military occupational specialty 11B1O (Light Weapons Infantryman). On 14 July 1975, he was promoted to the rank of private/pay grade E-2. On 22 July 1975, he was transferred to Company C, 2nd Battalion, 17th Infantry, 7th Infantry Division, Fort Ord, California.
4. His service record does not contain any record of him receiving nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ). However, a DD Form 458 (Charge Sheet) shows the applicant was absent without leave (AWOL) from 24 July 1975 to 29 April 1977.
5. On 3 May 1977, charges were preferred against the applicant for violation of Article 86 UCMJ for one specification of AWOL.
6. On 9 May 1977, the applicant requested discharge for the good of the service under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separation).
7. The applicant acknowledged that he understood 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.
8. On 9 May 1977, his commander forwarded the applicant's request to the approving authority.
9. On 13 May 1977, the separation authority approved the applicant's request for discharge and directed that the applicant receive an under other than honorable conditions discharge certificate and to be reduced to private/pay grade E-1. On 24 May 1977, the applicant was discharged. The DD Form 214 he was issued shows he completed a total of 5 months and 6 days of creditable active military service. The applicant had accrued a total of 675 days of time lost.
10. 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.
11. Army Regulation 635-200, in effect at the time, provided that a Soldier whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may request a discharge for the good of the service in lieu of a trial. The regulation required that there was no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel (a member of the Judge Advocate Generals Corps or a person qualified under Article
27(b)(1) of the Uniform Code of Military Justice). The Soldier was also required to sign the request indicating he understood that he may receive a discharge under other than honorable conditions and the adverse nature of such a discharge. The regulation also required that the request be forwarded through channels to the general court-martial convening authority. The regulation also provided that an other than honorable conditions discharge certificate be issued.
12. Army Regulation 635-200 (Personnel Separations), 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. Whenever there is doubt, it is to be resolved in favor of the individual.
13. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests that his undesirable discharge be upgraded to an honorable discharge.
2. The applicant states that he was under a lot of stress, and he was young and confused at the time of his misconduct. His statement is noted, however, it is not sufficiently mitigating to warrant an upgrade to a properly issued discharge.
3. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. His length of AWOL renders his service unsatisfactory. Therefore, he is not entitled to either an honorable or a general discharge.
4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 24 May 1977; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
23 May 1980. 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
___rdg__ ____jcr___ __dkh___ 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.
_________Jeffrey C. Redmann______
CHAIRPERSON
INDEX
CASE ID
AR20060008316
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070208
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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