RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060010446 


	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, in effect, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, he would like his discharge recharacterized from undesirable to honorable so he can get his citizenship back.  

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 3 December 1969.  The application submitted in this case is dated 26 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 was inducted into the Army on 15 April 1968.  He completed basic combat training at Fort Bragg, North Carolina and was reassigned to Fort Rucker, Alabama for advanced individual training.  He was awarded military occupational specialty 67A (Aircraft Maintenance Crewman).  

4.  On 31 October 1968, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 28 August 1968 to 14 October 1968.  He was sentenced to confinement at hard labor for 3 months (suspended for 3 months) and a forfeiture of $50.00 pay per month for 3 months.

5.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal ETS) on the applicant’s DA Form 20 (Enlisted Qualification Record) shows he was AWOL for one day on 25 November 1968.  There is no record of nonjudicial punishment for this offense.  

6.  On 23 June 1969, the applicant was convicted by a special court-martial of being AWOL from 6 December 1968 to 25 May 1969.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of $46.00 pay per month for one month.

7.  On 12 November 1969, charges were preferred against the applicant for being AWOL from 16 September 1969 through 6 November 1969.

8.  On 17 November 1969, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by 
court-martial under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs (VA) if an undesirable discharge was issued.  The applicant did not submit statements in his own behalf.  

9.  On 28 November 1969, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.  

10.  On 3 December 1969, the applicant was discharged from active duty on temporary records under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial with an undesirable discharge.  He had completed 5 months and 15 days of active military service with 431 days of lost time due to AWOL and confinement.  

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

12.  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.

13.  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.  
14.  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.  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, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant’s service record shows he received two special courts-martial for being AWOL on two separate occasions for over 200 days in addition to the AWOL which led to his separation.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, there is no basis for granting the applicant's request for an upgrade of his discharge.  

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 December 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 December 1972.  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
AR20060010446
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070213
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19691203
DISCHARGE AUTHORITY
AR635-200, 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.