RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060014897 


	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.


x
	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 her undesirable discharge be upgraded to honorable and that her narrative reason for separation be changed.

2.  The applicant states that there was more than one reason why she was absent without leave (AWOL).  She states, in effect, that if these circumstances had not occurred, she would have fulfilled her tour of duty and kept her priorities of serving the nation and upgrading her education.  She states that sexual harassment and the use of drugs and alcohol were rampant at that time.  It was a very difficult situation.  She had two small children who were in their father’s custody and her children needed her due to a situation at their home.

3.  The applicant provides no additional documents in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 23 July 1974.  The application submitted in this case is dated 5 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 4 May 1972 for a period three years.  She completed basic combat training at Fort McClellan, Alabama and was reassigned to Fort Sam Houston, Texas for advanced individual training in military occupational specialty 91A (Medical Corpsman).

4.  On 21 August 1972, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from            7 August 1972 to 16 August 1972.  Her punishment consisted of a forfeiture of $65.00, and restriction and extra duty for 14 days.  She did not appeal the punishment.

5.  On 11 September 1972, the applicant accepted nonjudicial punishment under Article 15, UCMJ for failing to go to extra duty on two separate occasions.  Her punishment consisted of a forfeiture of $100.00 per month for 2 months, a reduction to private E-1, and extra duty and restriction for 30 days.  She did not appeal the punishment.

6.  On 6 October 1972, she was assigned to Fort Belvoir, Virginia as a lab technician. 

7.  The applicant’s personnel records contain a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) which shows she departed AWOL from Fort Belvoir, Virginia on 2 November 1972.  This document shows she surrendered to military authorities on 20 November 1972.  Her DA Form 20 (Enlisted Qualification Record) shows she was AWOL from 2 November 1972 to 16 November 1972.  There is no record of nonjudicial punishment for this period of AWOL.

8.  On 24 June 1974, charges were preferred against the applicant for being AWOL from 20 November 1972 to 20 June 1974.

9.  On an unknown date, 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, she admitted guilt to the offense charged and acknowledged that she might encounter substantial prejudice in civilian life and that she might be ineligible for many or all Army benefits administered by the Veterans Affairs if an undesirable discharge was issued.  She submitted statements in her own behalf.  

10.  In support of her chapter 10 proceedings, the applicant stated that she went AWOL because she did not like Army life and also because of her children.  She felt that her children needed her and she wanted to be with them.

11.  On 16 July 1974, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 and directed issuance of an Undesirable Discharge Certificate.

12.  The applicant was discharged from active duty on 23 July 1974 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  She had completed 6 months and 26 days of active military service.  Her DD Form 214 shows approximately 601 days of lost time.  

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

14.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

15.  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.  

16.  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 she received two Article 15s, one for being AWOL for 9 days and one for failing to go to extra duty.  The evidence of record shows she was later AWOL for approximately 17 days.  She was charged for being AWOL for over 500 days.  As a result, her record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to an honorable discharge.

3.  Considering the applicant’s overall record, it appears that her service was appropriately characterized.  

4.  The applicant’s statements were noted.  However, there is no evidence of record which indicates that the type of discharge issued to her was in error or unjust.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 July 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 July 1977.  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
AR20060014897
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070424
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19740723
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.