RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 July 2007
	DOCKET NUMBER:  AR20070000665 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Scott W. Faught

Member

Ms. Ernestine Fields

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, characterized as under other than honorable conditions (UOTHC), be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was only a 17 year old kid when he volunteered.  He states that it was during the Vietnam era and with all the drugs going around it was impossible.  He is very sick now and can only get help from VA (Department of Veterans Affairs) if his discharge is honorable.   

3.  The applicant provides no additional documentation in support or his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 21 March 1973, the date of his discharge.  The application submitted in this case is dated 5 January 2007.

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 14 December 1971, at the age of 17 years, 2 months, and 16 days.  His date of birth is 29 September 1954.  The applicant successfully completed basic combat training at Fort Campbell, Kentucky, and advanced individual training at Fort Leonard Wood, Missouri.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 62B, Wheel Vehicle Mechanic.  He was promoted to pay grade E-2 on 23 February 1972.

4.  On 11 July 1972, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave from 3 to 10 July 1972.  His punishment consisted of a reduction to pay grade E-1, a forfeiture of pay, and 30 days restriction and extra duty.


5.  The applicant's records show he absented himself from his unit without authority for the periods from 11 to 31 October 1972 and from 11 November 1972 to 20 January 1973.  He returned to military control and his unit on 20 January 1973.

6. On 23 January 1973, the applicant consulted with counsel and was advised of his rights.  He elected not to submit a statement in his own behalf.  

7.  Charges were preferred against the applicant on 1 March 1973, for his having been AWOL from 11 to 31 October 1972 and from 11 November 1972 to 20 January 1973.  

8.  On 2 March 1973, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if a discharge characterized as UOTHC were issued.  He waived his rights and elected not to submit a statement in his own behalf. 

9.  On 15 March 1973, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.  

10.  The applicant was discharged in the rank/pay grade, Private/E-1, on 21 March 1973.  He had a total of 11 months and 19 day of net active service and 108 days of time lost due to AWOL.

11.  The applicant applied to the Army Discharge Review Board (ADRB) on 29 November 2006 for an upgrade of his discharge; however, the ADRB was precluded from accepting his application due to its statue of limitations (15 years).  The Board accepted his application (DD Form 149), dated 5 January 2007.

12.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate. 



13.  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.

14.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request for discharge was made under coercion or duress. 

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant stated that he was only 17 years of age when he volunteered and that it was during the Vietnam era.  It is noted that he was 17 years, 2 months, and 16 days of age at the time of his first enlistment and was 18 years, 5 months, and 22 days of age on the date of his discharge.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

4.  The applicant further stated that when he volunteered to serve in the Army, drugs were readily available; however, there is no evidence drug usage by him contributed in any way to his separation from service.






5.  There is no evidence in the applicant's records, and the applicant has provided none, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

6.  Careful consideration has been given to the applicant's contention that he is very sick and can only get help from VA if his discharge is honorable.  The applicant is advised that the Board does not upgrade discharges to enable individuals to qualify for benefits administered by the VA and/or other Federal and State agencies that provide benefits to veterans.

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

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 March 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 20 March 1976.  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

__ena___  __EF____  __SWF__  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.




_____Eric N. Andersen_______
          CHAIRPERSON




INDEX

CASE ID
AR20070000665
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070703
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19730321
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
141
2.

3.

4.

5.

6.