RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 February 2007
	DOCKET NUMBER:  AR20060010295 


	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.


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	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 the type of discharge he received was in error.  He states that cancer was growing in his brain at that time and he kept hearing voices.  He states that his company commander made this a personal vendetta.  He also states that his records throughout his life show he was extremely committed to his country.  It is important that his discharge be upgraded because he now has cancer.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 26 June 1973.  The application submitted in this case is dated 6 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 applicant’s failure to timely file.

3.  The applicant was inducted into the Army on 5 April 1965.  He completed basic combat training and advanced individual training.  He was awarded military occupational specialty 36A (Field Artillery Communications Crewman).  He was honorably discharged from active duty on 8 May 1966 for the purpose of immediate reenlistment.

4.  The applicant reenlisted on 9 May 1966 for a period of six years.  He was promoted to sergeant on 4 January 1968.  He was honorably discharged from active duty on 11 January 1971 for immediate reenlistment.

5.  He reenlisted on 12 January 1971 for a period of six years.  




6.  On 31 October 1972, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his place of duty on 18 October 1972.  His punishment consisted of a reduction to the grade of specialist, E-4 (suspended for 6 months).

7.  The applicant's discharge packet and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 26 June 1973 are not available.  However, Headquarters, U.S. Army Personnel Center, Special Orders Number 177, dated 26 June 1973 discharged the applicant from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with issuance of an undesirable discharge.  He completed 2 years, 5 months, and 14 days of creditable active service on his current enlistment.

8.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

9.  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 undesirable discharge.

10.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of the applicant's chapter 10 discharge proceedings, the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, is presumed to have been administratively correct and in conformance with applicable regulations.  

2.  The applicant’s service record shows he received nonjudicial punishment under Article 15, UCMJ during the period under review.  

3.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed issuance of an undesirable discharge based on his overall record.

4.  The applicant's statements were carefully reviewed; however, he has provided no evidence other than his self-authored statements that indicate the type of discharge issued to him was in error or unjust.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 June 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 June 1976.  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

x______  x______  x______  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.




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          CHAIRPERSON


INDEX

CASE ID
AR20060010295
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070201
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19730626
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
110.0000
2.

3.

4.

5.

6.