RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060014980 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Mr. Patrick H. McGann Jr.

Member

Ms. Karmin S. Jenkins

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 discharge characterization as under other than honorable be changed to an honorable discharge.

2.  The applicant states, in effect, that he received a dishonorable discharge, because his drug test was positive.  He states that his punishment of a dishonorable discharge was too harsh.  He should have received rehabilitation but it was not approved.

3.  The applicant provides a copy of a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of a Department of Veterans Affairs Claims Form, dated 11 September 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 2 October 1973.  The application submitted in this case is dated 11 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's military records show that he entered active duty on  
25 September 1967.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 62E2O (Crawler Tractor Operator).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

4.  He was honorably discharged on 30 July 1970.  He completed a total of  
2 years, 10 months, and 5 days of active service.

5.  He immediately reenlisted for six years on 31 July 1970.  He served consecutively in Europe and in the Republic of Vietnam, ending his tour on 
31 December 1971.  He was then reassigned to Fort Hood, Texas.

6.  The applicant's records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of Uniform Code of Military Justice (UCMJ) on six occasions between 25 July 1972 and 28 March 1973 for seven specifications of failure to go at the time prescribed to his appointed place of duty, two specifications of AWOL, disobeying a lawful order, and dereliction of duty.

7.  On 24 July 1973, the applicant was convicted by Summary Courts-Martial and for being absent without leave (AWOL).

8.  DD Form 458 (Charge Sheet), dated 16 August 1973, shows that the applicant was charged with six specifications for failing to report to his appointed place of duty. 

9.  On 10 September 1973, 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 Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions 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 under the provisions of Army Regulation 635-200 (Personnel Separation), Chapter 10.

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 of a lesser included offense, that also authorized the imposition of a under other than honorable 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.  He also understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

11.  The applicant submitted no statement in his own behalf and he did not desire a rehabilitative transfer.

12.  On 25 September 1973, the appropriate authority approved the applicant’s request for discharge and directed that he receive an Undesirable Discharge Certificate.  He completed a total of 3 years, 1 month, and 14 days of active military service and he accrued 28 days of time lost.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

14.  Army Regulation 635-200 (Personnel Separations), in effect at the time, provided that a Soldier whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may request a discharge for the good of the service in lieu of a trial.  The regulation required that there was no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel (a member of the Judge Advocate Generals Corps or a person qualified under Article 27(b)(1) of the Uniform Code of Military Justice).  The Soldier was also required to sign the request indicating he understood that he may receive a discharge under other than honorable conditions and the adverse nature of such a discharge.  The regulation also required that the request be forwarded through channels to the general court-martial convening authority.  The regulation also provided that an undesirable discharge certificate will normally be furnished to an individual who is discharged for the good of the service and that the reason for discharge will be “FOR THE GOOD OF THE SERVICE, SPN 246.”

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 contends that he received a dishonorable discharge, because his drug test was positive and he did not received any rehabilitation.  

2.  The evidence shows that the applicant requested a discharge for the good of the service and he desired not to have rehabilitative transfer.

3.  The applicant's records show he was AWOL for 28 days.

4.  While the applicant has stated that he tested positive for drugs, there is no evidence of this in his records.

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The length of the applicant's absence without leave renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or general discharge.

6.  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.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 October 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
1 October 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

___klw___  ___phm__  ___ksj__  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.




_________Kenneth L. Wright_______
          CHAIRPERSON




INDEX

CASE ID
AR20060014980
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070510
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.