RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060014857 


	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 J. Fowler

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Thomas H. Ray

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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that he was actually told that he had been issued a general discharge.  He further states he went absent without leave (AWOL) because his mother was sick and he had to take care of her.  

3.  The applicant provides no additional documentation in support of this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 7 October 1976.  The application submitted in this case is dated 4 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.  The applicant enlisted in the Regular Army on 11 February 1975 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 16D (Hawk Missile Crewman).

4.  On 21 October 1975, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for missing a mandatory movement and being AWOL for the period 14 October 1975 through 20 October 1975.

5.  A DD Form 458 (Charge Sheet), dated 20 August 1976, shows charges were preferred against the applicant for being AWOL for the period 31 March 1976 through 14 August 1976.




6.  On 24 August 1976, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

7.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. 

8.  The applicant submitted a statement on his own behalf that stated, in effect, that after he completed his advanced individual training he took leave prior to departing for his assignment in Germany.  He further stated that his mother got sick and he had to stay with her and his little brother because his father did not live with them anymore.  He continued, in effect, that if he got chaptered from the service he could take care of his mother.
  
9.  On 24 September 1976, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an undesirable discharge and be reduced to the lowest enlisted grade. On 7 October 1976, the applicant was discharged from active duty and was issued an undesirable discharge after completing a total of 1 year, 3 months, and 7 days of creditable active service with 143 days of lost time due to AWOL.  

10.  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.  At the time, an undesirable discharge was normally considered appropriate.

11.  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 contends that his discharge should be upgraded to a general discharge.  However, records indicate that he received one Article 15 and had two instances of AWOL.  He had a total of 1 year, 3 months and 7 days of creditable active service with 143 days of lost time due to AWOL.  Based on the applicant’s misconduct his record of service did not meet the regulatory standard of satisfactory service.  In the absence of a record of satisfactory service, the applicant is not entitled to a general discharge.  

2.  The applicant’s voluntary request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  Evidence of record shows that he understood he could be discharged with an undesirable discharge, characterized as under other than honorable conditions.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 October 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
6 October 1979.  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

__JTM __  __THR __  ___RMN_  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.




______John T. Meixell         _
          CHAIRPERSON




INDEX

CASE ID
AR20060014857
SUFFIX

RECON

DATE BOARDED
17 APRIL 2007
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
144.7900.0000
2.

3.

4.

5.

6.