RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060012947 


	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. Kenneth Wright

Chairperson

Ms. LaVerne Douglas

Member

Ms. Ernestine Fields

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. 

2.  The applicant states, in effect, that he was under a lot of peer pressure from all the “Vietnam people” and it seemed like everyone was doing drugs.  He contends that he was a good Soldier and that he did his job well until he started using drugs and became an addict.  He also contends that he has straightened himself out and that he is a good citizen. 

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 21 January 1972.  The application submitted in this case is dated 
1 September 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 enlisted on 6 January 1970 for a period of 3 years.  He successfully completing basic combat training and advanced individual training in military occupational specialty (MOS) 11D (armor reconnaissance specialist).  He was later awarded MOS 11E (armor crewman).  The applicant arrived in Germany on 19 June 1970.  On 15 April 1971, the applicant was honorably discharged for immediate reenlistment.  He reenlisted on 16 April 1971 for a period of 6 years.  His DD Form 4 (Enlistment Contract) shows that he reenlisted for assignment in Vietnam with a reporting date of 1 August 1971.  The applicant departed Germany on or about 17 June 1971.  Records show the applicant went absent without leave (AWOL) on 1 August 1971 and returned to military control on 30 August 1971.  He went AWOL again on 13 September 1971 and returned to military control on 23 December 1971.   

4.  There is no evidence of record which shows the applicant served in Vietnam. 

5.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, his  DD Form 214 (Report of Transfer or Discharge) shows that he was discharged with an undesirable discharge on 21 January 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 1 year, 8 months, and 8 days of creditable active service with 131 days of lost time due to AWOL.

6.  There is no evidence of record which shows the applicant was diagnosed with drug abuse or dependency prior to his discharge. 

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

8.  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. 

9.  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.  

10.  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.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

3.  Records show the applicant should have discovered the alleged injustice now under consideration on 21 January 1972; therefore, the time for the applicant to file a request for correction of any injustice expired on 20 January 1975.  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

KW____  ___LD___  __EF____  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.


__Kenneth Wright______
          CHAIRPERSON




INDEX

CASE ID
AR20060012947
SUFFIX

RECON

DATE BOARDED
20070410
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19720121
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.