RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060008427 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. David K. Hassenritter

Member

Mr. Ronald D. Grant

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 an honorable discharge.  

2.  The applicant states, in effect, that his discharge is too harsh after so many years of positive post-service conduct his character of service should be upgraded to honorable.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the ending period 15 September 1970; a Washington, D.C. Police Department Criminal History Request, dated 
30 December 2005; a Department of Motor Vehicles 5 Year Driver Record, dated 30 December 2005; a Certificate of High School Equivalency, dated 30 June 1978; two Letters of Support; five Certificates of Training; and three Certificates of Appreciation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 15 September 1970.  The application submitted in this case is dated 23 May 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.  The applicant was inducted into the Army on 27 August 1969 for a two year term of service.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 94B (Cook).

4.  Evidence of record shows that the applicant was absent without leave (AWOL) for the period 4 April 1970 through 22 August 1970.

5.  The applicant's charge sheet is not available.



6.  On 1 September 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He did not submit statements on his own behalf.

7.  The discharge request approval action is not available.

8.  On 15 September 1970, the applicant received an undesirable discharge from the service after completing 7 months and 28 days of creditable active service with 141 days of lost time due to AWOL.  His DD Form 214 shows in item 11c (Reason and Authority) the entry "CH 10 AR 635-200 SPN 246 FOR THE GOOD OF THE SERVICE" ,  in item 13a (Character of Service) the entry "UNDER CONDITIONS OTHER THAN HONORABLE and in item 13b (Type of Certificate Issued) DD Form 258A".  The DD Form 258A was an Undesirable Discharge Certificate.

9.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 11 May 1979, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the characterization of his discharge was proper as under other than honorable conditions.

10.  The applicant provided a letter of support from the Director, Human Resources of the Family and Child Services of Washington, D.C., dated 
30 December 2005.  The author stated that she could attest to the upstanding character and integrity of the applicant and his efforts in the community in helping clients, families, and senior citizens.

11.  The applicant provided a letter of support from a fellow co-worker with the Office of the Aging within the District of Columbia, dated 31 May 2006.  The author stated that she has observed the applicant several times a week for the past 12 years and that he was a highly competent professional who took his responsibilities seriously.



12.  The applicant provided a Washington, D.C. Police Department Criminal History Request, dated 30 December 2005, that shows no arrests or charges.

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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An undesirable discharge, characterized as under other than honorable conditions was normally considered appropriate.

14.  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.

15.  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.

16.  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.  The applicant’s post service achievements and conduct are noteworthy.  However, good post service conduct alone is not a basis for upgrading a discharge, and upon review, the applicant's good post service conduct is not sufficient to mitigate his indiscipline in the Army.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

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 had one instance of a lengthy AWOL.  He had completed 7 months and 28 days of service on his two year term of service before his separation with a total of 141 days of lost time due to being AWOL.  Regrettably, 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 the issuance of a general or honorable discharge.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 11 May 1979.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 10 May 1982.  However, 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

__JCR __  __DKH_ _  __RDG__  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

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.




____ Jeffrey C. Redmann _
          CHAIRPERSON




INDEX

CASE ID
AR20060008427
SUFFIX

RECON

DATE BOARDED
8 FEBRUARY 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. CHUN
ISSUES         1.
144.9407.0000
2.

3.

4.

5.

6.