RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060010530 


	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.


x

	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 his undesirable discharge be changed to an honorable discharge.

2.  The applicant states that his sister had just died and he got home the day she was buried.  He states it was not fair to discharge him under those conditions.  He stated that his family contacted the Red Cross and the Army, but they did not tell him.  

3.  The applicant provides five letters from his family members, a personal statement, and a letter from a Member of Congress.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 October 1972.  The application submitted in this case is dated 18 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 enlisted in the Regular Army on 1 December 1971 at the age of 17 years old.  He completed basic combat training and advanced individual training (AIT).  He was awarded military occupational specialty 13A (Field Artillery, Basic).  He was advanced to private E-2 on 1 April 1972 and was placed on assignment to Germany.

4.  The applicant’s personnel records contain an undated DA Form 2496-1 (Disposition Form) which indicated he had been directed to report to an overseas replacement station enroute to his assignment.  He was advised to comply with instructions specified in Army Regulation 630-5 if any emergency occurred requiring him to request an extension of his leave.  

5.  In a document dated 10 May 1972, the applicant stated he was absent without leave (AWOL) from 5 May 1972 to 10 May 1972 because his younger sister died on 12 April 1972, two days prior to his graduation from AIT.  This document indicated the applicant departed on leave on 14 April 1972.  Red Cross assistance was requested, but the extension of his leave was not granted.  

6.  On 29 September 1972, charges were preferred against the applicant for being AWOL from 5 May 1972 to 10 May 1972, 11 May 1972 to 5 June 1972, and 6 June 1972 to 23 September 1972.  

7.  On 5 October 1972, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offenses 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.  He did not submit statements in his own behalf.

8.  On 20 October 1972, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with issuance of an Undesirable Discharge Certificate.  

9.  On 20 October 1972, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 5 months and 22 days of active military service with 139 days of lost time due to AWOL.  

10.  The Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge on 16 April 1979.  

11.  The applicant submitted letters of support from his family members and his second wife.  The individuals stated that the applicant was young when he joined the Army.  In effect, they stated the applicant was confused, sorrowful, and angry because the Army did not inform him about his sister’s death until the funeral.  

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.

15.  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 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 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 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 record of service shows he was charged for being AWOL on three separate occasions for a total 139 days.  

3.  The applicant’s statements regarding the circumstances which led to his AWOL are noted.  Although he may now feel that his undesirable discharge should be upgraded to honorable, his service does not meet the standards of acceptable conduct and performance of duty to warrant an honorable discharge in accordance with Army Regulation 635-200.

4.  There is no apparent error, injustice, or inequity on which to base recharacterization of his discharge.  Therefore, there is no basis for granting the applicant's request.  
5.  The letters of support provided by the applicant were not sufficiently mitigating to warrant relief in this case.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 16 April 1979.  As a result, the time for the applicant to file a request for correction of any error injustice to this Board expired on 15 April 1982.  The applicant did not file within the ABCMR's 3-year statute of limitations and has not provided 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.



x__________
          CHAIRPERSON


INDEX

CASE ID
AR20060010530
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070227
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19721020
DISCHARGE AUTHORITY
AR635-200, chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.