RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060017692 


	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:


Mr. William Crain

Chairperson

Mr. Donald Lewy

Member

Mr. Roland 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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that the charge was failure to follow a lawful order.  He contends that he did not perform the task and that he suffered a reduction in rank.  He also contends that he was not afforded a court-martial at any level of severity.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 14 June 1972.  The application submitted in this case is dated 29 November 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 14 January 1965 for a period of 3 years.  He trained as a field artillery radar crewman.  On 8 January 1967, he was released from active duty.  He reenlisted on 31 October 1968 for a period of 3 years.  He served as an aircraft maintenance apprentice.  On 19 April 1970, he was honorably discharged for immediate reenlistment.  He reenlisted on 20 April 1970 for a period of 3 years.  He served in Vietnam from 14 June 1970 to 4 May 1971.    
4.  On 27 October 1971, in accordance with his plea, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 9 August 1971 to 29 September 1971.  He was sentenced to be confined at hard labor for 2 months, to forfeit $95 pay per month for 2 months, and to be reduced to E-1.  On 16 December 1971, the convening authority approved the sentence but suspended the confinement at hard labor for 4 months. 

5.  On 16 March 1972, charges were preferred against the applicant for absenting himself from his appointed place of duty, being AWOL from his unit for one day (7 March 1972), two specifications of failure to repair, failing to obey a lawful order, and disobeying a lawful command.  Trial by special court-martial was recommended.

6.  On 1 May 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit a statement in his own behalf.  

7.  On 31 May 1972, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.

8.  Accordingly, the applicant was discharged with an undesirable discharge on 
14 June 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 2 years, 5 months, and 17 days of active service during that enlistment and a total of 6 years, 11 months, and 1 day of creditable active service with 51 days of lost time due to AWOL.

9.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade 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 3-7b, 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 evidence of record does not support the applicant’s contention that he was not afforded a court-martial.  Evidence of record shows that on 16 March 1972 six charges were preferred against the applicant and trial by special court-martial was recommended.  However, the applicant voluntarily requested discharge in lieu of trial by court-martial.    

2.  The applicant’s record of service during his last enlistment included one special court-martial conviction, 51 days of lost time, and six offenses that led to referral of special court-martial charges.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 14 June 1972; therefore, the time for the applicant to file a request for correction of any injustice expired on 13 June 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

WC____  __DL____  _RV_____  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 Crain______
          CHAIRPERSON




INDEX

CASE ID
AR20060017692
SUFFIX

RECON

DATE BOARDED
20070531
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19720614
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.