RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060014513 


	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 under other than honorable conditions discharge (undesirable discharge) be upgraded.

2.  The applicant states that he was sent home [on leave] and the day he arrived he was absent without leave (AWOL).

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 8 November 1973.  The application submitted in this case is dated 23 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 in the Regular Army on 18 June 1971 for a period of three years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was advanced to private E-2 on 18 October 1971.

4.  The applicant was assigned to Fort Clayton, Panama (Canal Zone) on 22 November 1971 as a mortar carrier driver.

5.  On 29 March 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully possessing .09 grams, more or less, of marijuana.  His punishment consisted of a forfeiture of $75.00 pay (suspended for 60 days) and 14 days extra duty.  He did not appeal the punishment.

6.  On 12 April 1972, the applicant was convicted by a special court-martial of being AWOL from 20 January 1972 to 29 February 1972.  He was sentenced to a reduction to private E-1, hard labor without confinement for 3 months, and a forfeiture of $75.00 pay for 4 months.  The portion of the sentence pertaining to the forfeiture of $75.00 and confinement of hard labor without confinement was suspended for 60 days.

7.  On 13 September 1972, the applicant accepted NJP under Article 15, UCMJ for being AWOL from 5 September 1972 to 10 September 1972.  His punishment consisted of a forfeiture of $74.00 pay for one month, reduction to private E-1, 
14 days extra duty, and 14 days restriction.  He did not appeal the punishment.  

8.  The applicant departed on ordinary leave in the continental United States (CONUS) on an unknown date.  His personnel records contain a DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 27 December 1972, that shows he was in an AWOL status on 23 November 1972 and was dropped from the unit rolls on 22 December 1972.  This document indicates the applicant had failed to return to his unit at Fort Clayton, Panama from ordinary leave to CONUS.  He was apprehended by city police in Lawton, Oklahoma on 12 December 1972.

9.  On 26 October 1973, charges were preferred against the applicant for being AWOL from 23 November 1972 to 24 October 1973.

10.  On 29 October 1973, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs (VA) if an undesirable discharge was issued.  

11.  The applicant submitted statements in support of his request for discharge.  He stated, in effect, that he went AWOL because of family problems.  He had difficulty adjusting to military life.  He completed basic training and advanced individual training at Fort Ord, California and went home on leave.  After he returned from leave, he was assigned to Fort Clayton, Panama (Canal Zone).  He was contacted by the Red Cross to return home on emergency leave because his girlfriend was pregnant.  While he was on leave, his mother became very ill.  He requested an extension [to his leave] but it was denied.  He went AWOL for 58 days.  His brother convinced him to return to his unit in the Canal Zone.  He received a special court-martial and was fined $485.00 and sentenced to 3 months hard labor.  After this incident, his attitude changed and he did not care about anything.  He started using drugs and got into a lot of trouble.  He stated he received several Article 15s for possession of marijuana and one Article 15 for disobeying a lawful order.  He later went AWOL again and stayed home with his family until 24 October 1973.  He was glad he was apprehended because he wanted to get the Army behind him.  He did not want anything to do with the Army.  

12.  On 31 October 1972, the unit commander recommended applicant be issued a undesirable discharge.  The unit commander indicated the applicant had received one court-martial and eight Article 15s.  The applicant’s personnel records contain only two Article 15s.

13.  On 5 November 1973, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 and directed issuance of an Undesirable Discharge Certificate.  

14.  On 8 November 1973, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 1 year, 3 months, and 23 days of active military service with 380 days of lost time due to AWOL.  His DD Form 214 shows 394 days of lost time.

15.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

16.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

17.  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.  

18.  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.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant's record of service shows he received two Article 15s, one for wrongfully using marijuana and one for being AWOL for 5 days, and he was convicted by a special court-martial for being AWOL for 40 days.  He was later charged for being AWOL for 335 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a fully honorable or a general discharge.  

3.  Considering the seriousness of the applicant's offenses, it appears that his service was appropriately characterized.  

4.  The applicant has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him  was in error or unjust.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 November 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 November 1976.  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
AR20060014513
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070501
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19731108
DISCHARGE AUTHORITY
AR635-200, chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.