RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011201 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Paul Smith

Member

Mr. Jerome Pionk

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 a general discharge.

2.  The applicant states, in effect, that his records were lost or destroyed and that his case was classified as an administration nightmare in approximately 1975.  He contends that he was issued a bad discharge to close his case. 

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 5 March 1976.  The application submitted in this case is dated 1 August 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 10 June 1968 for a period of 3 years.  He successfully completed combat basic training and advanced individual training in military occupational specialty 11C (infantry indirect fire crewman).

4.  Records show the applicant was arrested on 11 June 1969 by civilian authorities.  On 28 June 1969, he was convicted of receiving stolen goods and sentenced to serve time at the Colorado State Reformatory (no other details available).  

5.  The applicant’s service personnel records contain a letter, dated 26 August 1969, from a correctional counselor at the Colorado State Reformatory which states, in pertinent part, that the applicant was an inmate at that institution.  This letter also requested information pertaining to the applicant’s military service.  On 26 September 1969, the Army replied to this request.  Records show the Army contacted the Colorado State Reformatory regarding the applicant’s status for processing for discharge under the provisions of Army Regulation 635-206 (civil conviction).  Records also show the Army contacted the Commanding Officer at the Special Processing Detachment at Fort Carson, Colorado for a record of the applicant’s former unit.  On 22 December 1969, the Commanding Officer at the Special Processing Detachment at Fort Carson, Colorado responded that the applicant’s former assignment was U.S. Army Overseas Replacement, Fort Lewis, Washington through April 1969.        

6.  On 1 January 1970, the applicant went absent without leave (AWOL), was apprehended by civilian authorities on 15 January 1976, and returned to military control.  Charges were preferred against the applicant for the AWOL period.   

7.  On 26 January 1976, 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 to submit a statement in his own behalf.  In summary, he stated that he was arrested in 1969 by the Denver civilian police for receiving stolen goods.  He was tried and convicted and sent to the state reformatory for a period of one to ten years.  He states the Army was notified of his arrest and sentence through his counselor at the institution and that he was informed that he was discharged from the Army under the provisions of Army Regulation 635-206, for civil conviction.  He goes on to state that he served one year and was paroled for one year.  He asked his parole officer about his discharge from the Army because he did not receive any paperwork and he was told it takes time but not to worry because he was discharged.  He states that he was not AWOL from the Army, that he had a wife and three children, that he was arrested in his hometown at his place of work in front of his co-workers, and that he wanted to be discharged so he could be reunited with his family.
        
8.  The intermediate commander recommended that the applicant’s request be approved.  He stated, in pertinent part, that “This EM [enlisted member], while qualifying for discharge UP [under the provision] Chapters 10 and 15, AR [Army Regulation] 635-200 for misconduct, also qualifies for discharge UP AR 635-206, for Civil Conviction of receipt of stolen goods.  During his over six year absence, [the applicant’s name and rank] started a family and has become a productive member of society.  Therefore, I do not see punishment or rehabilitation as being in the best interest of justice.  Approval of this request would save the time and expense of a trial and subsequent elimination action.” 

9.  On 2 March 1976, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

10.  Accordingly, the applicant was discharged with an undesirable discharge on 
5 March 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 1 year, 8 months, and 12 days of total active service with 2184 days of lost time due to AWOL.  The applicant’s DD Form 214 (Report of Transfer or Discharge) shows that he was separated from the service on temporary records and a Soldier’s affidavit.  

11.  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.

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

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant’s contention that his records were lost or destroyed.  His DD Form 214 shows that he was separated on temporary records.

2.  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.  

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

4.  Since the applicant’s record of service included 2184 days of lost time, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 5 March 1976; therefore, the time for the applicant to file a request for correction of any injustice expired on 4 March 1979.  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

WP____  _PS_____  __JP____  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.


  William Powers______
          CHAIRPERSON




INDEX

CASE ID
AR20060011201
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19760305
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.