RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060012357 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Paul M. Smith

Member

Mr. Jerome L. 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, in effect that his undesirable discharge (UD), characterized as under other than honorable conditions (UOTHC) be changed to an honorable or general (under honorable conditions).

2.  The applicant states, in effect, that the time they got him for lost days was when a Senator J___ R____ (a Member of Congress [MOC]) told him he was getting discharged because his wife was having hard times carrying their son.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 30 April 1973, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 30 April 1973, the date of his discharge.  The application submitted in this case is dated 31 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's record shows he entered active duty on 2 March 1966.  The applicant successfully completed basic combat training and advanced individual training at Fort Knox, Kentucky.  On completion of his one station unit training (OSUT), he was awarded the military occupational specialty (MOS), 71A, Basic Administrative Specialist.  He was promoted to specialist five (SP5/E-5) on 17 January 1968.  He continued to serve until he was discharged on 3 March 1968, for immediate reenlistment.

4.  The applicant reenlisted on 4 March 1968.

5.  On 31 March 1972, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 23 March 1972 to 30 March 1972.  His punishment consisted of a forfeiture of pay.
6.  On 18 July 1972, he was punished under Article 15, UCMJ, for disobeying a lawful order from a commissioned officer.  His punishment consisted of a forfeiture of pay and 30 days restriction.

7.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows that he was AWOL from 27 October 1971 to 7 December 1971 (42 days), from 23 March 1972 to 29 March 1972 (7 days), and from 1 August 1972 to 26 February 1973 (210 days). 

8.  Charges were preferred against the applicant on 16 March 1973, for being AWOL from 1 August 1972 to 27 February 1973.  

9.  There is no evidence the applicant applied for a hardship discharge or that a MOC was assisting him in promoting his cause for a hardship discharge based on his wife's health issues.

10.  On 13 April 1973, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if an undesirable discharge were issued.  He waived his rights and elected not to submit a statement in his own behalf. 

11.  On 20 April 1973, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.  

12.  The applicant was discharged on 30 April 1973, in the pay grade of E-1.  He had a total of 6 years, 5 months, and 17 days of creditable service and 259 days of lost time due to AWOL.

13.  Army Regulation 635-200 sets forth the basic authority for 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.

14.  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.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  On 20 May 1974, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

17.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

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 type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant contends that they got him for lost days when a MOC told him he was getting discharged because his wife was having hard times carrying their son.  However, there is no evidence, and applicant has provided none, to support his contention.  

5.  The evidence of record shows that the applicant accumulated a total of 259 days of lost time due to frequent incidents of AWOL.  A cumulative absence of this duration is serious and there is insufficient evidence to show that he now deserves an upgrade of his discharge.  

6.  The evidence of record clearly shows the applicant's first period of service was honorable and that he may be entitled to some VA benefits; however, he must contact his nearest VA representative for further assistance regarding VA benefits.

7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 20 May 1974.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 19 May 1977.  However, 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

__JP____  __WDP__  ___PMS_  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 D. Powers____
          CHAIRPERSON




INDEX

CASE ID
AR20060012357
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070313
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19730430
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.