RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 April 2007
	DOCKET NUMBER:  AR20060010652 


	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. Gerard W. Schwartz

Acting Director

Mr. Edmund P. Mercanti

Analyst

The following members, a quorum, were present:


Mr. John N. Slone

Chairperson

Mr. David K. Haasenritter

Member

Mr. John G. Heck

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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that he was 17 years old when he enlisted.  When he completed training he was stationed in Korea.  While in Korea, he went home on leave because his girlfriend was having a problem with their unborn child.  While on leave, his girlfriend lost the baby.  He stayed with his girlfriend beyond his approved leave period trying to deal with their loss.  When he turned himself in, he was told he had a choice of being returned to duty or being separated with an undesirable discharge.  He was led to believe that his undesirable discharge would change to an honorable discharge after a certain amount of time.  The applicant states that he would not have accepted an undesirable discharge if he had known it would not be automatically upgraded.

3.  The applicant provides his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 12 October 1973.  The application submitted in this case is dated 20 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 25 September 1972 at 17 years of age.  He was awarded the military occupational specialty of infantryman, indirect fire crewman and was assigned to Korea.

4.  The applicant’s records do not contain his discharge packet.  However, his DD Form 214 shows that he was issued an Undesirable Discharge Certificate on 12 October 1973.  His DD Form 214 also shows that he had 34 days of lost time and was discharged for the good of the service, in lieu of trial by court-martial.

5.  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.

DISCUSSION AND CONCLUSIONS:

1.  It is evident that the applicant requested discharge in lieu of trial by court-martial when charges were preferred against him for his 34 days of absence without leave.

2.  The applicant has not claimed that he was not given due process.  

3.  While the applicant states that his girlfriend had a problem pregnancy which led to the loss of the baby, he has not submitted any documentation to substantiate his contention.

4.  There are no provisions to automatically upgrade a properly issued discharge based solely on the passage of time, and the applicant has not submitted any evidence to show that he was, in fact, told that his discharge would be upgraded after a given period of time.

5.  As such, the Board must assume administrative regularity in this case, that what the Army did was proper and just.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 October 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 October 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

___jgh___  ____jns_   ____dkh__  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.




__________John N. Slone_______
          CHAIRPERSON




INDEX

CASE ID
AR20060010652
SUFFIX

RECON
20070419
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.