RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060014361 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward E. Montgomery

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 be upgraded to general.  The applicant requests to personally appear before the Board.

2.  The applicant states, in effect, that he wants to upgrade his discharge to obtain veterans benefits.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 23 May 1974, the date of his discharge.  The application submitted in this case is dated 3 October 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.  On 2 October 1972, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 71B1O (Clerk Typist).

4.  On 22 January 1973, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for breaking restriction.  The punishment included a forfeiture of $50.00 pay and 7 days correctional custody ($40.00 and 6 days suspended).

5.  On 26 January 1973, the applicant received  NJP for wrongfully soliciting another Soldier to disobey a general order; and for being absent without leave (AWOL) from 27 to 29 January 1973   The punishment included a forfeiture of $150.00 pay per month for 2 months (1 month suspended), and 7 days correctional custody.



6.  On 19 April 1973, the applicant received NJP for being AWOL from 21 March to 16 April 1973 (26 days).  The punishment included reduction to private, pay grade E1; and 14 days extra duty and restriction.

7.  On 26 September 1973, the applicant was convicted by a special court-martial for being AWOL from 20 April to 16 August 1973 (118 days).  His sentence consisted of confinement at hard labor for 3 months and forfeiture of $200.00 pay per month for 3 months.  He served 74 days in confinement.

8.  On 11 April 1974, charges were preferred under the Uniform Code of Military Justice for two violations of Article 86, AWOL, during the period from 18 March to 21 March and again from 21 March to 10 April 1974 (23 days).

9.  On 30 April 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

11.  On 10 May 1974, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 23 May 1974, the applicant was discharged accordingly.  He had completed a total of 1 year and 12 days of creditable active military service and accrued 220 days of time lost due to AWOL and confinement.

12.  On 29 May 1981, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

13.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  At the time, an undesirable discharge was normally considered appropriate.

14.   Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 3 days but not more than 30 days is confinement for 6 months and forfeiture of two-thirds pay per month for 6 months.  The UCMJ also provides, in pertinent part, that if an accused is found guilty of two or more offenses for none of which dishonorable or bad-conduct discharge is authorized, the fact that the authorized confinement without substitution for these offenses is 6 months or more will, in addition, authorize bad-conduct discharge and forfeiture of all pay and allowances.

15.  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 requested a personal appearance before the Board; however, since there is sufficient evidence of record to fully consider this case, a formal hearing is not warranted.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.

3.  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 the aforementioned requirement.
4.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 29 May 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 28 May 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

__MJF___  __EM  __  __CLG __  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.




_     Curtis L. Greenway_____
          CHAIRPERSON


INDEX

CASE ID
AR20060014361
SUFFIX

RECON
 
DATE BOARDED
20070412 
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19740523
DISCHARGE AUTHORITY
AR 635-200, CH 10. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.