RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060016888 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Donald L. Lewy

Member

Mr. Roland S. Venable

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 his undesirable discharge, characterized as under other than honorable conditions, be upgraded to an honorable discharge.  He also requests the date and place he entered active duty be corrected.

2.  The applicant states, in effect, his wife was having difficulty with her pregnancy when she lost their baby.  He was denied leave of absence, so he departed absent without leave (AWOL).  He states that he had just returned from the Republic of Vietnam.

3.  He adds he entered active duty on 13 September 1967, in Montgomery, Alabama.

4.  The applicant provides a copy of DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 18 October  
1972, and a written statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 18 October 1972.  The application submitted in this case was received on  
8 December 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’s record shows he enlisted in the Regular Army on  
13 September 1967.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty  
12B4O (Combat Engineer).

4.  He initially entered active duty on 13 September 1967 for a period of three years.  He was honorably discharged on 17 June 1969 and immediately reenlisted for a period of six years.  He was issued a DD Form 214 for the period ending 17 June 1969, after serving 1 year, 9 months, and 5 days of active service.
5.  On 21 February 1968, the applicant was tried by a Summary-Court-Martial and was found guilty of stealing a Revere Sweater, the property of Fort Leonard Wood, Missouri, Main Post Exchange.

6.  On 3 October 1969 and 28 January 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty without proper authority.

7.  On 5 May 1971, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being AWOL during the period 29 April to 3 May 1971.

8.  On 23 February and 2 March 1972, the applicant accepted NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty without proper authority.

9.  On 19 April 1972, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being AWOL during the period 13 March to 11 April 1972.

10.  On 2 May 1972, the applicant's duty status changed from present for duty to AWOL.  His records show he was dropped from the rolls of the Army on  
5 June 1972 and he remained AWOL until on about 19 September 1972.  The applicant was returned to military control pending court-martial charges.

11.  On 21 September 1972, charges were preferred against the applicant for being AWOL during the period 5 May to 19 September 1972.

12.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

13.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights 
and benefits as a veteran under both Federal and state law.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life by reason of an Undesirable Discharge.

14.  On 22 September 1972, the applicant's commander forwarded his recommendation for separation to the approving authority.  On 5 October  
1972, the approving authority approved the applicant's request and directed the applicant be furnished an Undesirable Discharge Certificate.

15.  On 18 October 1972, the applicant was discharged.  The DD Form 214 he was issued with ending period 18 October 1972 shows he completed a total of  
4 years, 7 months, and 17 days of creditable active military service and that he accrued 168 days of time lost.

16.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

17.  Army Regulation 635-200 (Personnel Separations) 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

18.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

19.  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.  The applicant requests to upgrade his undesirable discharge.  He also states that the date and place he entered active duty was incorrect.

2.  The evidence shows the applicant was AWOL during the periods 29 April to  
3 May 1971, 13 March to 11 April 1972, and 5 May to 19 September 1972.  As such, an undesirable discharge was equitable and proper.

3. The applicant's statement that his wife was having difficulty with her pregnancy and he was denied a leave of absence is noted.  However, the applicant provides no evidence to show that he sought assistance from his chain of command.  His statement is not sufficient to warrant a change to a properly issued discharge. 

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  The extensive length of his AWOL renders his service unsatisfactory. Therefore, he is not entitled to either an honorable or a general discharge.

5.  The evidence shows that applicant immediately reenlisted on 18 June  
1969 and was issued a DD Form 214 for the period 13 September 1967 to  
17 June 1969.  Therefore, the date he entered active duty on his DD Form 
214 for the period ending 18 October 1972 is correct as shown. 

6.  The applicant has not submitted any documentation to show the place he enlisted is improperly recorded.

7.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 October 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
17 October 1975.  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

___rsv __  ___dll___  ___rsv___  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.




__________William F. Crain_______
          CHAIRPERSON




INDEX

CASE ID
AR20060016888
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070531
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.