RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060010012 


	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.



	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, an upgrade of his undesirable discharge (UD).

2.  The applicant states, in effect, that he was not punished by court-martial and that he was granted an UD, but he served honorably and needs help.  

3.  The applicant provides no additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that occurred on 3 July 1974.  The application submitted in this case was received on 17 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 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’s record shows he initially enlisted in the Army and entered active duty 6 June 1962, for a period of three years.  He was trained in, awarded, and served in military occupational specialty (MOS) 111.07 (Light Weapons Infantryman).

4.  On 25 May 1964, the applicant was honorably discharged for the purpose of immediate reenlistment.  The separation document (DD Form 214) issued to him at that time shows he completed 1 year, 11 months, and 21 days of active military service, and that he earned the Marksman Marksmanship Qualification Badge with Rifle (M-1) Bar, Parachutist Badge, and Expert Marksmanship Qualification Badge Rifle (M-14) Bar.

5.  On 26 May 1964, the applicant reenlisted and remained on active duty in the Regular Army (RA).

6.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 25 May 1965, for violating a general regulation by carrying a concealed razor on his person.  The punishment for this offense was a reduction to private first class (PFC) and 14 days extra duty and restriction.

7.  On 27 May 1966, the applicant was promoted to sergeant (SGT) by Headquarters, 173rd Airborne Brigade, Special Orders Number 146.

8.  On 1 August 1968, a special court martial (SPCM) convicted the applicant of being absent without leave (AWOL) from on or about 4 April through on or about 20 July 1968.  The resultant sentence was confinement at hard labor for 
5 months and a forfeiture of $70.00 per month for 5 months.  On 15 August 1968, the unexecuted portion of the sentence to confinement at hard labor for five months was suspended.

9.  The Military Personnel Records Jacket (MPRJ) contains a Notice of Return of US Army Member from Unauthorized Absence (DA Form 3836), which shows that the applicant departed AWOL on 30 July 1968, and that he was subsequently dropped from the rolls (DFR) of his organization.  It also shows that he remained AWOL until being apprehended by civilian authorities on 13 July 1974.  

10.  On 20 June 1974, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for three specifications of violating Article 85 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 30 July 1968 through on or about 13 June 1974.

11.  On 26 June 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation 635-200.  In his request for discharge, he acknowledged his understanding that 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of an UD.

12.  On 26 June 1974, the applicant prepared a statement on his own behalf in which he stated, in effect, that he completed 12 years of school and was convicted only of minor traffic violations and petty larceny.  He also points out that he volunteered to serve in the Army, completed basic training, advanced individual training, leadership school, jump school where he earned his wings, was awarded the Army Good Conduct Medal, promoted to SGT, and received an HD from the United States Army Reserve.  He continued by indicating that he was once punished by Article 15 and was twice punished by court martial for being AWOL due to marital problems.  He finally indicated that if he was awarded his discharge, he would return to being a rug cutter and raise his family of six.

13.  On 1 July 1974, the separation authority approved the applicant’s request for discharge and directed that he receive an UD under the provisions of chapter 10, Army Regulation 635-200.  On 3 July 1974, the applicant was discharged accordingly.

14.  The DD Form 214 issued to the applicant on the date of his discharge confirms that he was separated under the provisions of chapter 10, Army Regulation 635-200.  It also shows that at that time his record of service was not verified, however he accrued a total of 2164 days of lost time.  

15.  There is no evidence in the applicant’s MPRJ to show that he ever petitioned the Army Discharge Review Board (ADRB) for an upgrade of his UD.

16.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UD be upgraded because he served honorably and now needs help was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief. 


2.  The evidence of record confirms that the applicant accepted non-judicial punishment on one occasion, that he was convicted by SPCM for two periods of AWOL.  His record also confirms he accrued a total of 2164 days of lost time due to AWOL and that he only returned to military control after being apprehended by civil authorities.  

3.  Further, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The applicant, after consulting with counsel and being advised of his rights and the effects of an UOTHC discharge, voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to an offense(s) under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of undistinguished service.  Therefore, an upgrade to his discharge would not be appropriate at this time.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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 request.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 July 1974.  Therefore, the time for him to file a request for correction of any error or injustice expired on 2 July 1977.  He failed to 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

___TMR _  __JCR __  __JRH __  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.




_____Thomas C. Ray_____
          CHAIRPERSON


INDEX

CASE ID
AR20060010012
SUFFIX

RECON
NO
DATE BOARDED
2007/03/01
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
1974/07/03
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
In lieu of trial by court martial
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000
2.

3.

4.

5.

6.