RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060015732 


	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.

2.  The applicant states, in effect, that he did not deserve the type of discharge he received and that he would like his discharge upgraded to get a better job.

3.  The applicant provides no additional documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 1 May 1974.  The application submitted in this case is dated 26 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 24 November 1972 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 13A (Field Artillery Basic).  

4.  The applicant's records show that he was absent without leave (AWOL) for the period 20 February 1973 through 22 February 1973.

5.  On 17 March 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL for the period 12 March 1973 through 15 March 1973.

6.  On 6 July 1973, the applicant accepted NJP under Article 15, UCMJ for two instances of failing to obey a lawful order from a Noncommissioned Officer.

7.  On 20 August 1973, the applicant accepted NJP under Article 15, UCMJ for failing to register his privately owned vehicle and failing to have proper insurance.



8.  The applicant's records show that he was AWOL for the period 10 September 1973 through 26 September 1973.

9.  On 1 October 1973, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty.

10.  A DD Form 458 (Charge Sheet), dated 12 March 1974, shows charges were preferred against the applicant for being AWOL for the period 13 January 1974 through 2 March 1974.

11.  On 13 March 1974, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.

12.  The applicant submitted a statement on his own behalf that stated, in effect, that he did not like the Army and could not adjust.  He further stated that he knew that he would lose his benefits. 

13.  On 26 March 1974, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an undesirable discharge.  On 1 May 1974, the applicant was discharged with an undesirable discharge and a characterization of service of under other than honorable conditions.  The applicant had completed 1 year, 2 months, and 
29 days of creditable active service that period with 71 days lost time due to AWOL.

14.  On 7 July 1981, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.  The ADRB determined that the applicant's discharge was proper and equitable and that the reason for discharge and characterization of his discharge was proper as under other than honorable conditions.




15.  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.  The regulation currently states that a discharge under other than honorable conditions is normally considered appropriate.

16.  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.  

17.  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.

18.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not deserve the type of discharge he received and that he would like his discharge upgraded to get a better job.  However, evidence of record shows that the applicant requested a discharge under the provisions of chapter 10 of Army Regulation 635-200 rather than face a court-martial offense.  Records show that counsel properly advised him and that he fully understood the consequences of the discharge that he requested.  In addition, in his own words at the time of his proceedings he stated that he did not like the Army and could not adjust.  Unfortunately, the ABCMR does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.

2.  The applicant's records show that he received four Article 15s and had four instances of AWOL.  He had completed 1 year, 2 months, and 27 days of creditable active service with 71 days of lost time 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 a general or honorable discharge.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation 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.  

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 July 1981, the date of the ADRB action; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 July 1984.  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

__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
AR20060015732
SUFFIX

RECON

DATE BOARDED
8 MAY 2006
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.