RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2006
	DOCKET NUMBER:  AR20060011872 


	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:


Ms. Margaret Patterson

Chairperson

Mr. Larry Racster

Member

Mr. Rodney Barber

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.  He also requests that his overseas duty be shown on his DD Form 214 (Report of Transfer or Discharge). 

2.  The applicant states that he served his country during a period of war and that he wants his discharge upgraded so he may be eligible for benefits.  He also states that his overseas service is not reflected on his DD Form 214.   

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred on 
13 December 1973.  The application submitted in this case is dated 4 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 8 March 1972 for a period of 3 years.  He was awarded military occupational specialty 12A (pioneer).  

4.  On 26 February 1973, nonjudicial punishment was imposed against the applicant for possessing hashish, being absent without leave (AWOL) from duty, using provoking and reproachful words, disobeying a direct order, and failing to be in a proper military uniform.  His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty.   

5.  On 26 July 1973, nonjudicial punishment was imposed against the applicant for being AWOL from 19 June 1973 to 9 July 1973.  His punishment consisted of a forfeiture of pay.  The DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) shows the applicant went AWOL from his organization in Germany.

6.  On 17 August 1973, the applicant went AWOL and returned to military control on 29 November 1973.  On 30 November 1973, charges were preferred against the applicant for the AWOL period.  

7.  On 3 December 1973, 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 the Army is not what he needed, that he could not stand the harassment, and that he went AWOL to get discharged.
  
8.  On 11 December 1973, 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 
13 December 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 1 year and 5 months of active service with 128 days of lost time due to AWOL.  

10.  Item 22c (Foreign and/or Sea Service) on the applicant’s DD Form 214 shows the entry, “0  0  0.”

11.  The applicant’s DA Form 20 (Enlisted Qualification Record) is incomplete.  Item 31 (Foreign Service) is blank.  

12.  The applicant’s inclusive dates of service in Germany are not available.

13.  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.

14.  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. 

15.  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.  

16.  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.  A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.

2.  Since the applicant’s record of service included two nonjudicial punishments and 128 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.

3.  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.    

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

5.  Although the available records show the applicant was AWOL from Germany, his inclusive dates of service in Germany are not available.  Therefore, there is insufficient evidence on which to amend item 22c on his DD Form 214. 

6.  Records show the applicant should have discovered the alleged errors now under consideration on 13 December 1973; therefore, the time for the applicant to file a request for correction of any error expired on 12 December 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

MP___  ____LR__  __RB____  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.



__Margaret Patterson__
          CHAIRPERSON




INDEX

CASE ID
AR20060011872
SUFFIX

RECON

DATE BOARDED
20070315
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19731213
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.
100.0000
3.

4.

5.

6.