RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      15 March 2007
      DOCKET NUMBER:  AR20060009617


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Mr. Rodney E. Barber              |     |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, that his undesirable discharge be
changed to a medical discharge and that he be paid stockade pay.

2.  The applicant states, in effect, that he told his recruiting officer
there was something wrong with his back.  He was told to keep his mouth
shut and it took four tries for him to enlist.  The applicant alleges the
recruiting officer would give him the answers to questions he missed so he
could join the Army.  The applicant states he wasn't drafted; he joined.
When he joined, he was to have trucks or heavy equipment, but he got
infantry instead.

3.  The applicant adds that officers said he was "gold-bricking" (lying
about his back), but he is not a lying person.  He was AWOL (absent
without leave) to prove his back was messed up.  He was gone less than
thirty days.  After he got caught, he went back on his own and there they
handcuffed him to his bed.  His platoon sergeant said he still had rabbit
in him and for him to keep his mouth shut – that, because he could lose
his stripes.  He adds he got caught the second time and was sent to Fort
Hood, Texas, to the stockade for pre-trial confinement.  He got out of the
stockade two weeks before he was discharged.  He went for medical
assistance and they proved his back was critically injured.  He suffered
with his back until 1980 when he had surgery and then had another surgery
in 1981.  The first was done in St. Joseph, and the second was done in
Houston, Texas.

4.  The applicant provided a copy of a NA Form 13046, Response to Request
for Separation Documents/Information, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 22 February 1972, the date of his discharge.  The application
submitted in this case is dated 27 June 2006 and was received for
processing on 10 July 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 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 enlisted in the Regular Army for a period of 3 years on
23 July 1971.  His DD Form 4, Enlistment Contract – Armed Forces of the
United States, shows he selected no particular option in conjunction with
his enlistment.

4.  The applicant was sent to Fort Ord, California, to undergo basic combat
training.  He arrived there and was assigned to Company C, 1st Battalion,
1st Basic Combat Training Brigade.  On 1 October 1971, the applicant
departed AWOL from his unit.  Item 44 (Time Lost Under Section 972, Title
10, United States Code and Subsequent to Normal Date ETS (Expiration Term
of Service), of the applicant's DA Form 20, Enlisted Qualification Record,
shows he returned to military control on 3 October 1971.

5.  The applicant again departed AWOL from his unit on 24 October 1971.
He was dropped from the rolls of his unit on 4 January 1972.  Item 44, of
the applicant's DA Form 20, shows he returned to military control and was
placed in pretrial confinement at Fort Hood, Texas, on 7 January 1972.

6.  Documents related to the applicant's request for discharge, for the
good of the service – in lieu of court-martial, are not available in his
service personnel record.  Information related to the applicant's
discharge was taken from the Case Report and Directive prepared by the
Army Discharge Review Board (ADRB).  The summary of facts and
circumstances shown on this document are as follows:

      a.  18 January 1972 – applicant faced trial by court-martial for
two periods of unauthorized absence totaling 76 days.

      b.  19 January 1972 – mental status evaluation was conducted.  No
significant mental illness.  Applicant met retention standards.

      c.  19 January 1972 – separation physical examination qualified the
applicant for separation.

      d.  3 February 1972 – applicant consulted with counsel (JAGC [Judge
Advocate General's Corps)] and was advised of his rights.  He elected to
request discharge in lieu of trial.  A statement in behalf of the
applicant was submitted by his defense counsel,

      e.  7 February 1972 – PCF (Personnel Control Facility) Commander
recommended approval with issuance of an undesirable discharge
certificate.

      f.  Undated – Headquarters Command Commander concurred.

      g.  SJA (Staff Judge Advocate) concurred.

      h.  10 February 1972 – discharge under the provision of Army
Regulation (AR) 635-200, chapter 10 approved by the GCMA (general court
martial authority).

7.  The applicant was discharged with an undesirable discharge, with his
service characterized as under other than honorable conditions, under the
provisions of AR 635-200, Chapter 10, for the good of the service – in
lieu of court-martial, in the rank and pay grade of Private, E-1, on 22
February 1972.  On the date of his discharge, the applicant had completed
3 months and 17 days creditable active military service, with 105 days
time lost due to AWOL and confinement.

8.  The applicant enlisted in the rank and pay grade Private, E-1, and was
not promoted while he served in the Army.  Private, E-1, is the highest
rank and pay grade he held while serving in the Army.

9.  Item 13, of the applicant's DD Form 214, Armed Forces of the United
States, Report of Transfer or Discharge, shows he was awarded no awards
while on active duty.

10.  There is no evidence the applicant had been referred to a medical
evaluation or a physical evaluation board while he was undergoing his basic
combat training.

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge within its 15-year statute of limitations.  On 6
March 1984, he was advised that after careful consideration of his military
records and all other available evidence, the ADRB had determined he had
been properly and equitably discharged.

12.  AR 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 submit, at
any time after the charges have been preferred, 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, but the separation authority may direct a general discharge
or an honorable discharge if such is merited by the Soldier's overall
record and if the Soldier's record is so meritorious that any other
characterization clearly would be improper.

13.  AR 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, 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.  AR 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 separation specifically allows such characterization.

15.  AR 635-200, chapter 5, provides the basic authority for the
separation of enlisted personnel.  Chapter 5, paragraph 5-9, specifically
provides that Soldiers who were not medically qualified under procurement
medical fitness standards, when accepted for induction or initial
enlistment will be discharged when a medical board, regardless of the
date completed, establishes that a medical condition was identified by
appropriate military medical authority within four months of the member's
initial entrance on active duty or active duty for training under the
Reserve Enlistment Program for 1963 which – (a) would have permanently
disqualified him for entry into the military service head it been
detected at that time; and (b) does not disqualify him for retention in
the military service under the provisions of AR 40-501, Chapter 3.

16.  Table 1-12, DoD Financial Management Regulation, Volume 7A, Chapter 1,
Rule 9 specifically states that when a member is absent from duty in
military confinement (other than for civil authorities) and is awaiting
trial by court-martial or serving a sentence of confinement which did not
include a forfeiture of pay, then the member is entitled to otherwise
proper credits of pay and allowances.

17.  The Doctrine of Laches is defined by Black's Law Dictionary, sixth
edition, as the neglect to assert a right or claim which, taken together
with lapse of time and other circumstances causing prejudice to the adverse
party, operates as a bar in a court of equity.

18.  The applicant provided no documentary evidence to show that he was not
provided pay and other entitlement while he was in pre-trial confinement
and to support his claim to "stockade pay."

19.  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 US 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 (AR 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 available evidence shows the applicant was discharged under the
provisions of AR 635-200, Chapter 10, for the good of the service.  In
connection with such a discharge, the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge.  Procedurally, the applicant was required to consult with
defense counsel, and to voluntarily, and in writing, request separation
from the Army in lieu of trial by court-martial.  In doing so, the
applicant admitted guilt to the stipulated offenses under the UCMJ.

2.  The evidence shows the applicant was sent to Fort Ord, California, to
undergo basic combat training.  While undergoing this training, he went
AWOL from his unit.  He returned to his unit and after remaining there only
a few days again departed AWOL.  The applicant was dropped from the rolls
of his unit.  He was returned to military control at Fort Hood, Texas, and
was placed in pretrial confinement.  While in confinement, he requested
discharge for the good of the service, in lieu of trial by court-martial.
The applicant's request was approved by the general court-martial convening
authority.

3.  The available evidence shows that all requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the separation process.  While all documents related to his
discharge are not available, in the absence of any evidence to the
contrary, Government regularity in the discharge process is presumed.

4.  The applicant applied to the ADRB for an upgrade of his discharge.
After careful consideration of his military records and all other
available evidence, the ADRB determined he had been properly and
equitably discharged. .  The characterization of service for this type of
discharge is normally under other than honorable conditions and the
evidence shows that the applicant was aware of or should have been aware
of that prior to requesting discharge.
5.  The applicant's allegation that he was supposed to get trucks or heavy
equipment but he got infantry instead is not supported by the evidence.
The evidence shows that he enlisted in the Regular Army for 3 years and he
selected no particular option in conjunction with his enlistment.
Additionally, the evidence shows he departed AWOL before he could be
assigned to advanced training leading to award of a military occupational
specialty.

6.  There is no evidence the applicant brought a medical issue to the
attention of his enlisting officer or noncommissioned officer.  Had this
been done, he would not have been enlisted unless he met the Army's medical
fitness standards for enlistment.  Additionally, there is no evidence to
show he had been referred to a medical evaluation or a physical evaluation
board while he was undergoing his basic combat training.  The evidence, to
the contrary does show he underwent a separation medical examination and
was found to meet retention standards.

7.  Due to the passage of time, information pertinent to his pay and
allowances has been lost or destroyed; therefore, favorable consideration
for reestablishment of the applicant's entitled to pay and other
entitlements while he was in pretrial confinement is barred by laches.

8.  There is also no evidence the enlisting officer provided the applicant
with answers to missed question in the entrance examination.  To have done
so or to be detected doing so could have resulted in serious charges being
made against the perpetrators, to include the applicant, for this
fraudulent activity.

9.  Even though the applicant did not provide any documentary evidence to
support his report, the Board noted the applicant reportedly underwent the
first of two operations to his back in 1980 and the second of such surgical
procedures in 1981, some eight and nine years after he was discharged from
the Army.

10.  In order to justify correction of a military record, the applicant
must show, 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.

11.  In view of the foregoing, there is no basis for granting the
applicant's request to change his undesirable discharge, with his service
characterized as under other than honorable conditions, to a medical
discharge.

12.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 6 March 1984.  As
a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 5 March 1987.  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

_LWR___  ___MKP__  __REB__ 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.




                                  ____  M. K. Patterson________
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060009617                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070315                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19720222                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |144.0133                                |
|3.                      |144.0143                                |
|4.                      |144.7100                                |
|5.                      |                                        |
|6.                      |                                        |


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