RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060010749 


	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



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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

2.  The applicant states, in effect, he believes his discharge should be a discharge other than undesirable.  He had pneumonia during the time he was in training and had a high fever, and did not know what he was doing.  He was sick the entire time he was there.  He was listed absent without leave (AWOL).

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 28 April 1975, the date of his discharge from active duty.  The application submitted in this case is dated 19 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's military records show that he enlisted in the Regular Army, on 19 June 1974, in pay grade E-1, for 3 years.  He completed basic combat training; however, he did not successfully complete advanced individual training due to being AWOL.

4.  On 9 September 1974, the applicant was punished under the provisions of Article 15, Uniform Code of Military Justice, (UCMJ), for being derelict in the performance of duty by sleeping on duty.  His punishment included forfeiture of $50.00 pay for one month.

5.  On 4 November 1974, the applicant was reported AWOL.  He returned to military control on 2 December 1974.  He was reported AWOL on 9 December 1974 and was dropped from the rolls.  He was returned to military control on 4 March 1975 and was placed in pre-trial confinement on 6 March 1975. 

6.  On 17 March 1975, a Charge Sheet (DA Form 458) was prepared by the Commander, US Army Personnel Control Facility, Headquarters Command, Fort Campbell, Kentucky.  The applicant was charged with two specifications of AWOL: from 4 November 1974 to 2 December 1974 and 9 December 1974 to 4 March 1975. 

7.  On 20 March 1975, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration if an undesirable discharge was issued.  He also acknowledged that trial by court-martial under the circumstances could lead to a bad conduct discharge or dishonorable discharge, and the effect of this request for discharge, and the rights available to him.  He waived his rights and elected not to submit a statement in his own behalf. 

8.  On the same date, the applicant's commander recommended approval of the applicant's request to be discharged for the good of the service under the provisions of Army Regulation 635-200, with the issuance of an undesirable discharge.

9.  On 27 March 1975, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Undesirable Discharge Certificate be issued and that he be reduced to pay grade E-1, if he was serving in a pay grade above E-1, prior to execution of the discharge.

10.  The applicant was discharged on 28 April 1975, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service.  He was credited with 6 months and 17 days of total active service and 113 days of time lost due to AWOL.

11.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for 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 Certificate.

13.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

14.  Army Regulation 635-200, chapter 3-7b, also 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 view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge to general or honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.  

2.  The applicant's contentions have been noted; however, his records clearly show that charges were brought against him for going AWOL from 4 November 1974 to 2 December 1974 and from 9 December 1974 to 4 March 1975.  The evidence shows the applicant requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a special court-martial to prove his innocence.

3.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge.  It is believed that the reason for discharge and the characterization of service were both proper and equitable. 

4.  The applicant's request for discharge for the good of the service was approved on 27 March 1975.  He was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial.

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 April 1975, the date of his discharge from active duty; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 April 1978.  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.

8.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his discharge due to the fact he was ill during the time he was in training.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____T___  __JGH___  ___DLL_  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.




      _______
                CHAIRPERSON




INDEX

CASE ID
AR20060010749
SUFFIX

RECON

DATE BOARDED
2007/02/21
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19750428
DISCHARGE AUTHORITY
AR635-200,Chapter 10
DISCHARGE REASON
In Lieu of Court-Martial
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
A70
2.

3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060010749


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508