RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060011376 


	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:


Mr. Hubert Fry

Chairperson

Mr. William Crain

Member

Mr. Dale DeBruler

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 he enlisted in the Army in 1968 and was told he would be a military policeman; however, this did not happen.  He contends that he trained for Vietnam and was ready to go but this did not happen.  He also states that he passed a test for promotion to E-4 on two occasions but he was never promoted.    

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 10 August 1971.  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 28 February 1969 for a period of 2 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 13A (field artillery crewman).  He was promoted to E-3 effective 5 October 1969.   

4.  The applicant went absent without leave (AWOL) on 3 January 1970, returned to military control on 25 June 1970, and was placed into confinement until 20 July 1970.  He went AWOL on 22 July 1970 and returned to military control on 
13 November 1970.  He was placed into confinement from 25 November 1970 to 27 November 1970.  He went AWOL again on 28 November 1970, returned to military control on 28 June 1971, and was placed into confinement until 22 July 1971.  On 6 July 1971, charges were preferred against the applicant for the AWOL periods.  

5.  On 20 July 1971, 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 during basic combat training he received an Article 15 for not having his weapon with him and that he went AWOL due to marital problems, adjustment problems (to the military), and financial problems.     

6.  On 3 August 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

7.  Accordingly, the applicant was discharged with an undesirable discharge on 
10 August 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 11 months and 6 days of total active service with 411 days of lost time due to AWOL and confinement.  

8.  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.

9.  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. 

10.  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.  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.    

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

3.  Since the applicant’s record of service included one nonjudicial punishment (by his own admission) and 411 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.

4.  Records show the applicant should have discovered the alleged injustice now under consideration on 10 August 1971; therefore, the time for the applicant to file a request for correction of any injustice expired on 9 August 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

HF_____  __WC____  __DD___  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.


_Hubert Fry___________
          CHAIRPERSON




INDEX

CASE ID
AR20060011376
SUFFIX

RECON

DATE BOARDED
20070213
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19710810
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.