RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060010047 


	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. Paul Wright

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 correction of the character of service of his discharge.

2.  The applicant states he left the service early when his parents died.  He further adds he discovered the character of service error in 1979 when applying for Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides no additional documentation or evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 22 January 1973.  The application submitted in this case is dated 6 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.  On 8 July 1970, the applicant was inducted into the Army of the United States for a period of 2 years.  He completed Basic Combat Training (BCT) and was assigned to Combat Support Training (CST) now known as Advanced Individual Training (AIT).  However, he immediately departed from his unit in an Absent Without Leave (AWOL) status and was subsequently dropped from the rolls as a deserter.

4.  The applicant was arrested by civil authorities for simple burglary on 16 March 1972.  He was sentenced to confinement for 1 year on 3 April 1972.

5.  On 24 July 1972, the applicant was notified by his commander that he was being recommended for separation because of his civil conviction.  The applicant did not acknowledge receipt until 3 January 1973.

6.  On 3 January 1973, the applicant, after consulting with counsel, waived his right to a Board of Officers.  He did not indicate whether he was submitting a statement in his behalf; however, there is no statement in the discharge proceeding packet.

7.  On 9 January 1973, the applicant's commander recommended to the General Court-Martial Convening Authority that the applicant be discharged under the provisions of Army Regulation 635-206 (Personnel Separations) because of his civil conviction and that he be issued an Undesirable Discharge Certificate.  The intermediate commander recommended separation and issuance of an Undesirable Discharge Certificate.

8.  On 17 January 1973, the General Court-Martial convening authority approved the separation and directed issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

9.  On 22 January 1973, the applicant was separated with an Undesirable Discharge.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had 3 months and 11 days of active creditable Federal service.  He had a total of 826 days of lost time.  It further shows he had been awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with M-16 Rifle Bar.

10.  Army Regulation 635-206 (Personnel Separations), in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 37 of the regulation provided, in pertinent part, the convening authority is authorized to order discharge or direct retention in the military service when disposition of an individual has been made by a domestic court of the US or its territorial possessions.  An Undesirable Discharge was normally considered appropriate.

11.  On 17 December 1981 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records (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.  Even though the applicant indicates his parents passed away during his initial period of training, he has provided no evidence to support this statement, such as death certificates and other related documentation.  But assuming this is an accurate statement, he has not shown how this relates to his lengthy AWOL and subsequent conviction by a civil court.

2.  The applicant's misconduct as a result of a conviction by a civil court is not in keeping with the standards expected of a Soldier.  The applicant had other avenues to pursue, if he had family problems and needed to be with his family, such as applying for a Hardship Discharge.  The Board notes that the applicant was stationed at Fort Polk, Louisiana and the applicant's induction paperwork shows him and his parents were residents of the state of Louisiana.  He could have applied for emergency leave to take care of his personal matters.  But withstanding all the above the real reason for the applicant's separation was his civil conviction.  His lengthy AWOL was not cited as a reason for his discharge.

3.  Eligibility for veterans' benefits does not fall within the purview of the Army.  This Board does not grant relief by upgrading a discharge characterization solely for the purpose of enabling a person to take advantage of DVA benefits.

4.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 17 December 1981.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 16 December 1984.  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:

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
AR20060010047
SUFFIX

RECON

DATE BOARDED
20070208
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19730122
DISCHARGE AUTHORITY
AR 635-206
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.6100
2.

3.

4.

5.

6.