RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 June 2007
	DOCKET NUMBER:  AR20070000287 


	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.


Mrs. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. LaVerne M. Douglas

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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, in effect, that his undesirable discharge be upgraded to honorable. 

2.  The applicant states, in effect, that at the time he was discharged he had applied for a compassionate reassignment.  He had two small children.  He even went to the chaplain and still was not heard.  It was raining on his house, on his children, and on his wife.  It almost drove him crazy, as if Vietnam had not already driven him crazy.  He believes his discharge to be inequitable because his military record was outstanding prior to his return from the Republic of Vietnam.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 August 1970, the date of his discharge.  The application submitted in this case is dated 13 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.  On 14 October 1966, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 94B1O (Cook).

4.  On 3 January 1967, the applicant was assigned for duty as a cook with the 502nd Transportation Company, Fort George G. Meade, Maryland.  A year later he was reassigned for duty as a cook with the 169th Engineer Battalion in the Republic of Vietnam.

5.  On 18 September 1968, the applicant was returned to the United States for duty at Fort Lee, Virginia.

6.  On 21 April 1969, the applicant was convicted by special court-martial of AWOL from 30 October to 8 December 1968 (40 days) and from 19 March to 
22 March 1969 (4 days).  His sentence consisted of confinement at hard labor for 6 months, a forfeiture of $185.00 per month for 6 months, and reduction to private, pay grade E1.  Only so much of the sentence as provides for confinement at hard labor for 6 months, forfeiture of $100.00 per month for 
3 months, and reduction to the grade of private, pay grade E1 was approved, except that the confinement and reduction in grade were suspended for a period of 6 months.

7.  On 20 May 1969, so much of the sentence as was in excess of a forfeiture of $70.00 per month for three months was set aside because the forfeiture was excessive.

8.  On 14 December 1969, so much of the sentence as pertains to confinement at hard labor was vacated.  The applicant was placed in confinement at the post stockade, Fort Campbell, Kentucky.  

9.  On 24 February 1970, all unexecuted portions of the sentence to confinement at hard labor was remitted.  The applicant was released from confinement on 
3 March 1970.

10.  On 19 March 1970, the applicant again went AWOL for 91 days until his return to military control on 17 June 1970.  

11.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 3 August 1970, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 2 years,10 months and 15 days of creditable active duty and had 
206 days of lost time due to AWOL and confinement.

12.  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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a punitive discharge and confinement for 
1 year.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  The applicant's record of good service is greatly diminished by the special court-martial that he received and the numerous periods of AWOL, and is outweighed by the circumstances of the discharge.  

3.  Notwithstanding the applicant's assertion that it would be unjust not to upgrade his discharge, there is no available evidence to show that he had any mitigating circumstances or that his AWOL was a reasonable solution to them.  

4.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 August 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
2 August 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

_   LMD _  __EEM __  __RMN__  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.




_    _LaVerne M. Douglas____
          CHAIRPERSON




INDEX

CASE ID
AR20070000287
SUFFIX

RECON
 
DATE BOARDED
20070612 
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19700803
DISCHARGE AUTHORITY
AR 635-200 ch 10. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.