RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 May 2007
	DOCKET NUMBER:  AR20060012377 


	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:


Mr. Hubert Fry

Chairperson

Mr. Thomas O’Shaughnessy

Member

Mr. James 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 undesirable discharge be upgraded to honorable or general.

2.  The applicant states, in effect, that he was 17 years old when he enlisted, that he was immature, and that he had lived on an Indian Reservation his entire life prior to joining the Army.  He states that he has completely changed his life and is a reputable citizen.

3.  The applicant provides the attachments outlined in the 13 July 2006 letter from the Veteran’s Service Center in Gering, Nebraska. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 5 June 1975.  The application submitted in this case is dated 13 July 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 27 February 1957.  He enlisted on 26 April 1974 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (light weapons infantryman).

4.  On 28 February 1975, in accordance with his pleas, the applicant was convicted by a special court-martial of two specifications of being absent without leave (AWOL) (from 10 October 1974 to 5 November 1974 and from 9 December 1974 to 28 January 1975).  He was sentenced to be confined at hard labor for 
30 days, to forfeit $100 pay per month for 3 months, and to be reduced to E-1.  On 7 March 1975, the convening authority approved the sentence but suspended the sentence to confinement until 7 June 1975.      

5.  The applicant went AWOL again on 14 March 1975, was apprehended by civilian authorities, and returned to military control on 24 April 1975.  On 8 May 1975, charges were preferred against the applicant for the AWOL period.   
6.  On 13 May 1975, 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 he could not adjust to the military life, that he wanted to get out of the military, and that his family was having financial problems.  The applicant provided a copy of this letter with his application.  

7.  On 22 May 1975, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

8.  Accordingly, the applicant was discharged with an undesirable discharge on 
5 June 1975 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 9 months and 13 days of active service with 117 days of lost time due to AWOL.  

9.  The applicant provided a character reference letter from his wife.  She attests that the applicant is a good husband, father, and provider.  He also provided two letters from previous employers and a letter from his current employer.  

10.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

11.  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. 

12.  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.  

13.  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 contentions were noted.  However, age is not a sufficiently mitigating factor and family problems are not grounds for upgrading a discharge. There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures.  

2.  The character reference letter submitted on behalf of the applicant fails to show that his discharge was unjust and should be upgraded.
 
3.  Since the applicant’s record of service included one special court-martial and 
117 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.

4.  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.    

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

6.  Records show the applicant should have discovered the alleged injustice now under consideration on 5 June 1975; therefore, the time for the applicant to file a request for correction of any injustice expired on 4 June 1978.  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_____  __TO____  ___JH___  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
AR20060012377
SUFFIX

RECON

DATE BOARDED
20070522
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19750605
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.