RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060015256 


	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 his undesirable discharge be upgraded to a discharge under honorable conditions. 

2.  The applicant offers no basis or argument to support his request for and upgrade of his discharge. 

3.  The applicant provides a copy of his report of separation (DD Form 214). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 15 April 1974.  The application submitted in this case is dated 18 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 in Bangor, Maine on 30 April 1971 for a period of 3 years.  He was transferred to Fort Dix, New Jersey to undergo his basic combat training (BCT).    

4.  On 16 June 1971, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 13 June to 15 June 1971.  His punishment consisted of a forfeiture of pay, extra duty and restriction. 

5.  The applicant was subsequently transferred to Fort Lee, Virginia where he completed his advanced individual training (AIT).  Upon completion of his AIT he was transferred to Fort Meade, Maryland for duty as an automotive repair parts specialist.  He was advanced to the pay grade of E-4 on 13 March 1972. 

6.  On 7 September 1972, NJP was imposed against him for being AWOL from 3 July to 4 August 1972.  His punishment consisted of a reduction to the pay grade of E-1 (suspended for 60 days) and a forfeiture of pay.

7.  The applicant was transferred to Fort Bliss, Texas on 29 March 1972 and on 29 August 1973, NJP was imposed against the applicant for being AWOL from 15 August to 21 August 1973.  His punishment consisted of a reduction to the pay grade of E-3 and extra duty.     

8.  On 17 October 1973, NJP was imposed against him for three specifications of failure to go to his place of duty (Guard Mount).  His punishment consisted of a reduction to the pay grade of E-2 and extra duty.

9.  On 24 October 1973, he went AWOL and remained absent in a deserter status until he was apprehended on 14 February 1974 by Massachusetts State Police on the turnpike at Charleston, Massachusetts and was returned to military control at Fort Devens, Massachusetts.  He was subsequently transferred to Fort Dix, New Jersey, where charges were preferred against him for the AWOL offense.

10.  The facts and circumstances surrounding the applicant’s discharge are not present in the available records (loaned to Veterans Administration Center, Togus, Maine on 28 September 1983); however, his records do contain a duly authenticated report of separation (DD Form 214) which shows that he was discharged under other than honorable conditions on 15 April 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  He had served 2 years, 6 months and 14 days of total active service and had 153 days of lost time due to AWOL.

11.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.      

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s overall record of undistinguished service has been considered and his service simply does not rise to the level of a discharge under honorable conditions.

4.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  
 
5.  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 the aforementioned requirement. 

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 April 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 April 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
AR20060015256
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070426
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
1974/04/15
DISCHARGE AUTHORITY
AR635-200/ch10 . . . . .  
DISCHARGE REASON
Gd of svc
BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.144.7000
689/A70.00
2.

3.

4.

5.

6.