RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060010979 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Marla Troup

Chairperson

Mr. John Heck

Member

Mr. Donald Lewy

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 honorable.

2.  The applicant states that at the time of his discharge he was advised to accept it or serve an inordinate (sic) sentence in the stockade.  He contends that he had no legal knowledge or adequate counsel at the time.  He also states that his discharge has hindered his employment opportunities. 

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 21 January 1971.  The application submitted in this case is dated 31 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 on 28 November 1969 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 13A (field artillery crewman) and later in MOS 91B (medical specialist).     

4.  On 14 July 1970, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 2 July 1970 to 11 July 1970.  His punishment consisted of a forfeiture of pay and extra duty.

5.  On 25 July 1970, nonjudicial punishment was imposed against the applicant for failure to repair and disobeying a lawful order.  His punishment consisted of a reduction to E-2 and extra duty.



6.  The applicant went AWOL on 31 July 1970 and returned to military control on 3 September 1970.  Later that day, he went AWOL again and returned to military control on 27 November 1970.  On 9 December 1970, charges were preferred against the applicant for the AWOL periods.  Trial by special court-martial was recommended.  

7.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.  

8.  On 30 December 1970, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

9.  Accordingly, the applicant was discharged with an undesirable discharge on 
21 January 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 9 months and 21 days of active service with 123 days of lost time due to AWOL.  

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

11.  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.  At the time, an undesirable discharge was normally considered appropriate. 

12.  Army Regulation 635-200, paragraph 3-7a, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  Army Regulation 635-200, paragraph 3-7b, 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.  Although the applicant contends that he had no legal knowledge or adequate counsel at the time, evidence of record shows that he consulted with counsel prior to voluntarily requesting discharge.  

2.  A discharge is not upgraded for the sole purpose of obtaining employment opportunities. 

3.  Since the applicant’s record of service included two nonjudicial punishments and 123 days of lost time, 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 a general or honorable discharge.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  Records show the applicant should have discovered the alleged injustice now under consideration on 21 January 1971; therefore, the time for the applicant to file a request for correction of any injustice expired on 20 January 1974.  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

MT____  ___JH____  _DL_____  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.




___Marla Troup________
          CHAIRPERSON




INDEX

CASE ID
AR20060010979
SUFFIX

RECON

DATE BOARDED
20070221
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19710121
DISCHARGE AUTHORITY
AR 635-200 Chapter 10 
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.