RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060012694 


	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 F. Crain

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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 upgraded.

2.  The applicant states, in effect, that at the time, he was an alcoholic and did not know it. 

3.  The applicant provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 28 April 1971, the date of his discharge.  The application submitted in this case is dated 24 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 military record shows he was inducted into the Army of the United States (AUS) on 3 April 1969.  The applicant successfully completed basic combat training at Fort Benning, Georgia, and advanced individual training at Fort Campbell, Kentucky.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.

4.  On 14 May 1969, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 12 May 1969 to 13 May 1969.  His punishment consisted of a forfeiture of pay and 14 days extra duty.

5.  On 3 June 1969, he was punished under Article 15, UCMJ, for being AWOL from 31 May 1969 to 2 June 1969.  His punishment consisted of a forfeiture of pay and 14 days extra duty.

6.  The applicant was promoted to pay grade E-2 on 3 August 1969.
7.  On 9 October 1969, the applicant was convicted by a summary court-martial of being AWOL from 22 August 1969 to 18 September 1969.  His sentence consisted of a forfeiture of pay and confinement for 1 month (suspended for 60 days). 

8.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record),  shows that he was AWOL on several occasions and was confined.  He had accumulated 363 days of lost time.

9.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy his DD Form 214 which shows that on 28 April 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He was furnished an undesirable discharge, in the pay grade of E-1.  He had a total of 1 year and 4 days of creditable service and 387 days of lost time due to AWOL and confinement. 

10.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

11.  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.

12.  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.




13.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review. 

3.  It is apparent that his discharge was based on his several incidents of misconduct, which included nonjudicial punishment on two occasions, under Article 15, UCMJ,  and one summary court-martial.  Therefore, there is insufficient basis to support his request for an upgrade of his UD.

4.  Careful consideration has been given to the applicant's contention that he was an alcoholic and did not know it.  However, there is no evidence in the available records, and the applicant has provided no evidence, to show that he requested assistance for this problem prior to his discharge or to show that his discharge should be upgraded based on this factor. 

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 28 April 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 April 1974.  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

___rn____  __EM___  ___WFC_  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 F. Crain______
          CHAIRPERSON




INDEX

CASE ID
AR20060012694
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070308
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19710428
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.