RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060012551 


	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 that the lost time during the period of 5 February to 21 April 1970 be removed from his report of separation (DD Form 214). 

2.  The applicant states that he was on military hold in a Washington D.C. jail and was acquitted of the charges against him; therefore, he should not have been charged with lost time for that period.  He further states that he was 18 years of age when he entered the military and he did not have a male role model or spiritual advisor. 

3.  The applicant provides a copy of his DD Form 214. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 27 May 1970.  The application submitted in this case is dated 9 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.  He was born on 28 March 1950 and was inducted on 27 September 1968.  He was transferred to Fort Bragg, North Carolina to undergo his basic combat training (BCT).  He completed his BCT and was transferred to Fort Sill, Oklahoma on 2 December 1968 to undergo his advanced individual training (AIT) as a cannoneer.    

4.  On 20 February 1969, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 3 February to 18 February 1969.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.  

5.  After completing AIT, the applicant was transferred to Hawaii on 26 March 1969.  On 12 October 1969, he went AWOL and remained absent until he was returned to military control at Fort Meade, Maryland on 28 November 1969, where charges were preferred against him for the AWOL offense.

6.  On 11 December 1969, he was convicted by a special court-martial of being AWOL from 12 October to 28 November 1969.  He was sentenced to be reduced to the pay grade of E-2 and restricted for 60 days.  However, the convening authority approved only so much of the sentence as provided for reduction to the pay grade of E-2.   

7.  The applicant was reassigned to Fort Knox, Kentucky on 21 January 1970 and again went AWOL on 5 February 1970.  The unit executive officer called the applicant at his home to encourage him to return to his unit and the applicant informed him that he did not want to hear it and hung up the phone.  The applicant was apprehended at his home in Washington, D.C. and was returned to military control at Fort Myer, Virginia.  He was given a transportation receipt (TR) to return to Fort Knox and instead went AWOL on 14 February 1970.  He was apprehended by civil authorities on larceny charges while riding in a stolen car on 28 February 1970 and remained in the hands of civil authorities until he was returned to military control at Fort Meade on 21 April 1970, where charges were subsequently preferred against him for the AWOL offense and for disobeying a lawful order from a superior commissioned officer.

8.  On 7 May 1970, 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, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also declined the opportunity to submit a statement in his own behalf. 

9.  The appropriate authority approved his request and directed that he be furnished an Undesirable Discharge Certificate. 

10.  Accordingly, he was discharged under other than honorable conditions on 
27 May 1970, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 3 months and 15 days of total active service and had 136 days of lost time due to AWOL.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his lost time during the period of 5 February to 21 April 1970 should not be counted against him because he was in the hands of civil authorities and was acquitted of the charges against him has been noted and found to be without merit.  

2.  The evidence of record clearly indicates that at the time he was arrested by civil authorities, he was in an AWOL status and it was not until the civil authorities returned him to military control that the Army was able to prefer charges against him.  All indications in the available records indicate that the applicant would not have returned to military control during the period in question if he had not been apprehended.  

3.  Although the applicant claims that he was acquitted of the charges against him, he has submitted no evidence to show that such was the case or that he had any intent of returning to military control at the time he was arrested.  Accordingly, there appears to be no basis to remove that period of lost time from his records. 

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 27 May 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
26 May 1973.  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

______  ____  __  __  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.




_____ _______
          CHAIRPERSON




INDEX

CASE ID
AR20060012551
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070227
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.123.0700
267/REM LOST TIME
2.

3.

4.

5.

6.