RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060014994


	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

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.

2.  The applicant states, in effect, that since his release from active duty he has not been in any trouble with any authority agency.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer of Discharge) with the period ending 25 May 1972 and a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 6 September 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 25 May 1972.  The application submitted in this case is dated 12 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 29 January 1971 and did not successfully complete basic training.

4.  On 26 February 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the day of 25 February 1971 and leaving his M-16 rifle unattended.

5.  On 5 March 1971, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 28 February 1971 through 4 March 1971.

6.  A DD Form 458 (Charge Sheet), dated 26 April 1972, shows charges were preferred against the applicant for being AWOL for the periods 1 April 1971 through 7 April 1971, 9 April 1971 through 28 April 1971, and 3 May 1971 through 11 April 1972.

7. The applicant's records show that he was AWOL for the period 12 May 1972 through 25 May 1972.

8.  The applicant's request for discharge for the good of the service packet is not available.

9.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows that he was discharged on 25 May 1972 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of "For the good of the Service" with a characterization of under other than honorable conditions.  The applicant completed 3 months and 4 days of creditable active service with 383 days lost 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, 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.  At the time, an undesirable discharge was normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7, 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.

12.  Army Regulation 635-200, paragraph 3-7, 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 since his release from active duty he has not been in any trouble with and authority agency.  However, good post service conduct alone is not a basis for upgrading a discharge and, upon review, the good post service conduct is not sufficient to mitigate his indiscipline in the Regular Army.

2.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.  

3.  The applicant's records show that he received two Article 15s and had five instances of AWOL.  He had completed 3 months and 4 days of creditable active service before his separation with a total of 383 lost days due to AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general discharge. 

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 May 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
24 May 1975.  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

__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
AR20060014994
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.
144.3100.0000
2.
144.7000.0000
3.

4.

5.

6.