RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060011843 


	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

Mr. W. W. Osborn, Jr.

Analyst

The following members, a quorum, were present:


Mr. James R. Hastie

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. James R. Hastie

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 discharge be upgraded to general. 

2.  The applicant states he was young and made a lot of mistakes.  His father was retired from the Army and passed away when the applicant was only 9 years old.  He was raised in foster homes.  He has no criminal record and has been a model citizen. 

3.  The applicant provides no substantiating documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 11 July 1973, the date of the discharge.  The application submitted in this case is dated 8 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 in the Regular Army for 4 years as a 19 year old high school graduate.  He entered active duty on 17 November 1972 and never completed training.

4.  On 7 December 1972 he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code o f Military Justice (UCMJ) for failure to obey a lawful order, on 12 January 1973 for failing to go to his place of duty, and on 7 February 1973 for disrespect to a commissioned officer by calling him a "f___ing pig."  

5.  The applicant was absent without leave (AWOL) from 2 April to 8 April 1973, from 16 April to 19 April 1973, and from 6 May to 21 May 1973.    

6.  When charges were preferred for these offenses, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court martial.  His request indicated that he understood he might forfeit 
benefits in civilian life, but he wanted to be discharged anyway.  His request indicated pre-service criminal offenses that had not been included on his enlistment application. 

7.  The discharge authority approved his request and the applicant was separated on 11 July 1973 with an undesirable discharge.  He had 6 months and 13 days of creditable service and 43 days lost time. 

8.  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.

9.  The Manual for Courts-Martial, Table of Maximum Punishments, then and currently in effect, sets forth the maximum punishments for offenses chargeable under the UCMJ.  Under Article 86, periods of AWOL of 3 or more but less than 30 days are punishable by confinement up to 6 months.  Rule for Courts-Martial 1003(d)(3) provides that an individual convicted of two or more offenses for which the authorized confinement totals 6 or more months, may be sentenced to a bad conduct discharge even though such a discharge is not otherwise authorized. 

10.  The applicant did not apply to the Army Discharge Review Board during that board's 15 year period of eligibility.

DISCUSSION AND CONCLUSIONS:

1.  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, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant was fully qualified to enlist by virtue of his age and education; however, his record is devoid of any redeeming service. 

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.
4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 July 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 10 July 1976.  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

_JCR____  __JRH___  __TMR_  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.




__     Thomas M. Ray____
          CHAIRPERSON




INDEX

CASE ID
AR20060011843
SUFFIX

RECON

DATE BOARDED
20070301
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19730711
DISCHARGE AUTHORITY
AR635-200, chapter 10  
DISCHARGE REASON
A70.00
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.00
2.

3.

4.

5.

6.