RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 July 2007
	DOCKET NUMBER:  AR20070001457 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Scott W. Faught

Member

Ms. Ernestine L. 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 his discharge be upgraded.

2.  The applicant states, in effect, he was a 21 year old young man and in the war zone.  The applicant further states he turned his life around and successfully completed thirty years of service in the government of Guam.  

3.  The applicant provided a Department of Veterans Affairs letter, dated 8 October 2004, and three character letters in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 14 December 1972, the date of his discharge.  The application submitted in this case is dated 16 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 records show he enlisted in the Regular Army on 1 August 1967.  Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty 13A (Artilleryman).  The highest rank he attained while serving on active duty was specialist four/pay grade E-4. 

4.  The applicant's records do not show any significant acts of valor during his military service.  Records show he was awarded the Vietnam Service Medal, the Republic of Vietnam Campaign Medal and the Bronze Star Medal for service in the Republic of Vietnam on 26 November 1968.  

5.  The facts and circumstances of the applicant's discharge are not available for review with this case. 


6.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 13 March 1968 to 19 March 1968.  He was sentenced to forfeiture of $23.00 for one month.  

7.  Records also reveal an extended absence of 1,402 days from on or about 30 December 1968 to 6 November 1972 when he voluntarily returned to military control.  During this extended absence, he was dropped from the rolls and placed in a desertion status on or about 1 February 1969.

8.  Headquarters, U. S. Army Personnel Center, Hawaii Special Orders Number 246, dated 20 December 1972, show that the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separation) with a characterization of service of under other than honorable conditions effective 23 December 1972. 

9.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under other than honorable conditions.  This form further confirms that he completed a total of 1 year, 5 months, and 19 days of creditable active military service and that he accrued 1,402 days of time lost due to AWOL and desertion.

10.  In order to request a discharge under the provisions of chapter 10 of Army Regulation 635-200, the applicant must indicate that he understood that by requesting discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He must further acknowledge 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.  

11.  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.

12.  The applicant provided a letter from the Department of Veterans Affairs, dated 8 October 2004, which informed him that his request for medical benefits was denied based on his characterization of service. 

13.  The applicant provided three character letters which, essentially, state he is trustworthy, dependable, positive, and demonstrates positive inter-personal communication skills.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, which 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.  At the time, a general or undesirable discharge were normally considered appropriate.

15.  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.

16.  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 contends that his discharge should be upgraded because he received combat service medals for service in a war zone and he retired from the government of Guam after serving for 30 years.  

2.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant's record of service shows that he accrued 1,402 days of lost time due to AWOL.  

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. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to a general discharge or an honorable discharge.

5.  Evidence shows that the applicant applied for and was denied Veteran's benefits.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for Veteran's benefits.

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

_ENA_____  _EF___  __SWE__  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
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.