RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060011943


	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.


	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 his Undesirable Discharge (UD) be upgraded to an Honorable Discharge (HD).

2.  The applicant states:

	a.  he was a drug abuser and went AWOL (absent without leave) in search of drugs.  He was arrested in El Paso, TX and returned to military control at Fort Sill, Oklahoma.  He was tried by a summary court-martial and, upon advice of counsel, he pled guilty.  He was given an UD as a result;

	b.  he was young and vulnerable;

	c.  his misconduct was not willful;

	d.  he was a drug addict; and

	e.  he received no rehabilitation.

3.  The applicant provides:

	a.  a 3-page supplemental statement;

	b.  a Criminal Investigation Division (CID) Report of Investigation (ROI) detailing his arrest by civil authorities for possession of heroin, marijuana, and drug paraphernalia;

	c.  his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge);

	d.  a DA Form 458 (Charge Sheet) charging him with being AWOL from 11 June 1972 to 3 March 1973;

	e.  ten pages of criminal convictions and Federal Bureau of Prisons inmate data;

	f.  a 14 August 2006 self-authored letter; and

	g.  a 2 July 2006 statement of incarceration.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 18 April 1973.  The application submitted in this case is dated 14 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 was born on 5 August 1954 and enlisted in the Regular Army for 2 years on 26 October 1971.  He was 17 years of age.

4.  The applicant underwent Basic Combat Training (BCT) and Advanced Individual Training (AIT) at Fort Ord, CA.  He was awarded military occupational specialty (MOS) 64C (Motor Transport Operator), was transferred to Fort Monroe, VA, and subsequently to Fort George G. Meade, MD.

5.  The applicant had a period of AWOL from 2-27 February 1972.  The record does not indicate the disposition of this offense.  The applicant was AWOL from 12 June 1972 to 2 March 1973.  He was returned to military control by civil authorities in El Paso, TX.

6.  The applicant was transferred to Fort Sill, OK where court-martial charges were preferred against him for AWOL.

7.  The applicant’s record does not contain a copy of his administrative discharge packet.  However, the applicant’s record contains a properly constituted DD Form 214 which identifies the reason and characterization of the discharge.  The evidence of record shows the applicant was discharged under the provisions of chapter 10, Army Regulation (AR) 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant 


was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.

8.  AR 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.

DISCUSSION AND CONCLUSIONS:

1.  Court-martial charges were preferred against the applicant for 264 days of AWOL.  Had he been tried and convicted, he could have received a punitive discharge and a sentence to confinement.  In the absence of information to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  Although he entered the Army at 17 years of age, the applicant was mature enough to successfully complete BCT and AIT without incident.  Furthermore, there is no evidence he was involved with illegal drugs until he was apprehended by civil authorities in El Paso.

4.  The applicant's contention that his misconduct was not willful is not persuasive.  He departed his unit in an AWOL status of his own free will and did not return of his own free will.

5.  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.


6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 April 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 17 April 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

__jea___  __swf___  __rsv___  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.



							James E. Anderholm
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011943
SUFFIX

RECON

DATE BOARDED
20070306
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19730418
DISCHARGE AUTHORITY
AR 635-200 C10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0000
2.

3.

4.

5.

6.