RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	29 March 2007  
	DOCKET NUMBER:  AR20060013813 


	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.


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	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 makes no statement in support of his application.  

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 27 April 1976.  The application submitted in this case was received on 29 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 was born on 30 June 1952 and enlisted in the Regular Army in Atlanta, Georgia, on 6 May 1974 for a period of 3 years, training as a field wireman and assignment to Fort Hood, Texas.   

4.  He completed his training and was transferred to Fort Hood for assignment to the 2nd Armored Division.  

5.  On 3 November 1974, he went absent without leave (AWOL) and remained absent in desertion until he was apprehended by Federal Bureau of Investigations (FBI) officials in Atlanta, Georgia on 5 March 1976.  He was returned to military control at Fort McPherson, Georgia and was transferred to Fort Campbell, Kentucky, where charges were preferred against him for the AWOL offense. 

6.  On 16 March 1976, after consulting with defense 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 understood the charges that had been preferred against him, 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 also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  Additionally, he acknowledged that he had been advised of the maximum punishment he could receive for his offense if convicted by the contemplated court-martial.   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 further elected not to submit a statement in his own behalf.

7.  The appropriate authority (a major general) approved his request on 30 March 1976 and directed that he be furnished an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged under other than honorable conditions on 27 April 1976, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He had served 7 months and 8 days of total active service and had 501 days of lost time due to AWOL.
    
9.  On 16 April 1981 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

10.  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 admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate 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.

11.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.
  
3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

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 exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 16 April 1981.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 15 April 1984.  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

___x___  ___x__  __x__  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.



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          CHAIRPERSON




INDEX

CASE ID
AR20060013813
SUFFIX

RECON

DATE BOARDED
20070329
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
1976/04/27
DISCHARGE AUTHORITY
AR635-200/ch10 . . . . .  
DISCHARGE REASON
Gd of svc
BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.144.7000
689/a70.00
2.

3.

4.

5.

6.