RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060015386 


	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:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Eddie Smoot

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 under honorable conditions discharge.

2.  The applicant states, in effect, that at the time of his discharge he was told after 1 year his discharge would be upgraded to a general under honorable conditions discharge.  He further states that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 8 May 1973 does not show all the time he served on active duty.

3.  The applicant provides his DD Form 214. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 8 May 1973.  The application submitted in this case is dated 13 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 22 February 1972 and did not successfully complete basic training.

4.  On 17 April 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 6 March 1972 through 6 April 1972.

5.  The applicant's records show that he was AWOL for the period 20 June 
1972 through 27 June 1972.

6.  On 1 August 1972, the applicant was convicted, in accordance with his pleas, by a special court-martial of AWOL for the period 25 April 1972 through 23 May 

1972.  His sentence consisted of a forfeiture of $50.00 pay per month for
3 months and confinement at hard labor for 3 months.

7.  The applicant's records show that he was AWOL for the periods 15 November 1972 through 15 January 1973, 12 February 1973 through 14 February 1973, and 20 February 1973 through 9 April 1973.

8.  The court-martial charge sheet is not available.

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

10.  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 8 May 1973 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of "For the good of the Service" with an undesirable discharge and a characterization of service of under other than honorable conditions.  The applicant completed 6 months and 12 days of creditable active service with 247 days lost due to AWOL and confinement.

11.  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.

12.  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.

13.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.


DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was told after 1 year his discharge would be upgraded, there is no policy or regulation within the Army which allows automatic upgrading of discharges.  

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show that he received one Article 15, one special court-martial, and had six instances of AWOL.  He had completed 6 months and 12 days of creditable active service before his separation with a total of 247 lost days due to AWOL and confinement .  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 a general discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 May 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
7 May 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

__LDS __  __JLP  __  ___ES __  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.




____Linda D. Simmons__
          CHAIRPERSON




INDEX

CASE ID
AR20060015386
SUFFIX

RECON

DATE BOARDED

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.