RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060015557 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Linda Simmons

Chairperson

Mr. Jerome 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 honorable.

2.  The applicant states that there was no error.  He contends that he heard President Reagan declared amnesty for Vietnam era veterans with “bad paper” to allow them to get their discharge upgraded to honorable.  He states that his undesirable discharge was for going absent without leave (AWOL) stateside not while overseas.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 30 October 1970.  The application submitted in this case is dated 23 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 on 5 December 1967 for a period of 3 years.  While in basic combat training, on 8 January 1968, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.  His punishment consisted of a forfeiture of pay.  He successfully completed basic combat training.  

4.  While in advanced individual training, the applicant went AWOL on 2 May 1968 and returned to military control on 6 June 1968.  He went AWOL on 8 June 1968 and returned to military control on 5 August 1968.  He went AWOL again on 10 October 1968 and returned to military control on 2 May 1969.

5.  On 10 July 1969, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a forfeiture of pay.   

6.  On 15 July 1969, nonjudicial punishment was imposed against the applicant for being AWOL from his appointed place of duty.  His punishment consisted of a forfeiture of pay.   

7.  The applicant went AWOL on 19 July 1969 and returned to military control on 30 July 1970.  He was placed in confinement on 31 July 1970.   

8.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant’s DD Form 214 (Report of Transfer or Discharge) shows that he was discharged with an undesirable discharge on 30 October 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 10 months and 14 days of creditable active service with 747 days of lost time due to AWOL and confinement.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 3-7a, 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.  

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.




DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

2.  Records show the applicant should have discovered the alleged injustice now under consideration on 30 October 1970; therefore, the time for the applicant to file a request for correction of any injustice expired on 29 October 1973.  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

LS_____  __JP____  _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 Simmons_______
          CHAIRPERSON

INDEX

CASE ID
AR20060015557
SUFFIX

RECON

DATE BOARDED
20070508
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19701030
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.