RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060011048 


	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 that his undesirable discharge be upgraded to an honorable or general under honorable conditions discharge.

2.  The applicant states, in effect, that he wants a discharge upgrade to honorable or general.

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 12 May 1975.  The application submitted in this case is dated 21 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 27 October 1972 for a period of three years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 36K (Field Wireman).  He was advanced to private E-2 on 27 February 1973.

4.  On 5 July 1973, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 18 June 1973 to 26 June 1973.  His punishment consisted of a forfeiture of $150.00 pay for 2 months, extra duty for 30 days, and restriction for 30 days.

5.  On 28 August 1973, the applicant accepted nonjudicial punishment under Article 15, UCMJ for failing to report to his place of duty and prepare to go to the field.  His punishment consisted of extra duty and restriction for 7 days.

6.  On 21 January 1974, the applicant was convicted by a special court martial of being AWOL from 14 October 1973 to 30 October 1973.  He was sentenced to a reduction to private E-1, a forfeiture of $75.00 pay for one month, and confinement at hard labor for 45 days.

7.  On 25 November 1974, the applicant accepted nonjudicial punishment under Article 15, UCMJ for being incapacitated for the proper performance of his duties as a result of previous indulgence in intoxicating liquor.  His punishment consisted of a reduction to private E-2 and a forfeiture of $25.00.

8.  Item 21 (Time Lost) on the applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was AWOL from 2 December 1974 to 17 March 1975.  There is no record of nonjudicial punishment for this period of AWOL.

9.  The applicant’s discharge packet is not available.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 12 May 1975 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with issuance of an undesirable discharge.  His DD Form 214 erroneously shows he completed 2 years, 10 months, and 7 days creditable active service, with 167 days of lost time due to AWOL and confinement.

10.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board (ADRB) 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.  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.

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, 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.  In the absence of the applicant's chapter 10 discharge proceedings, 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, is presumed to have been administratively correct and in conformance with applicable regulations.  

2.  The applicant’s service record shows he was convicted by a special 
court-martial for being AWOL for 16 days and he received three Article 15s and had an additional three-month AWOL period.

3.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed issuance of an undesirable discharge based on his overall record.

4.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable or general under honorable conditions.  

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 May 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 May 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.

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
AR20060011048
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070403
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19750512
DISCHARGE AUTHORITY
AR635-200, CHAPTER 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.