RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 July 2007
	DOCKET NUMBER:  AR20070002123 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. John P. Infante

Chairperson

Ms. Rose M. Lys

Member

Mr. James R. Hastie

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, characterized as under other than honorable conditions, be upgraded to a general discharge.

2.  The applicant states, in effect, that ever since he was discharged his life has been a mess.  He states that it was time for him to turn his life around, so he got a job as a roofer.  He worked as a roofer for five years then he got a "CDL-B-License" and he started working for Baltimore Sunpapers, where he worked for  
17 years.  He got married and has one daughter.

3.  He states, in effect, that he got another job at Free State Book Binders and he has been there for nine years.  He is trying to do his best on the outside, so he is asking for an upgrade to a general discharge.

4.  The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 12 August 1971.  The application submitted in this case is dated 31 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 military records show that he entered active duty on  
2 September 1970.  He attended basic combat training but never completed the training.

4.  On 24 October 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) during the period 13-21 October 1970.

5.  On 15 December 1970, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being AWOL during the period 1 November to 7 December 1970.
6.  On 22 March 1971, charges were preferred against the applicant for being AWOL during the periods 1 February to 2 March 1971.

7.  The applicant voluntarily requested discharge for the good of the service. However, his discharge request was denied by the approving authority pending court-martial for violation of Article 86.

8.  On 23 July 1971, charges were again preferred against the applicant for being AWOL during the periods 1 February to 2 March 1971 and 7 May to 14 July 1971.

9.  On 26 July 1971, 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 undesirable 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.

10.  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 if he were issued an Undesirable Discharge.

11.  On 3 August 1971, the applicant's commander forwarded his recommendation for separation to the approving authority.  On 12 August 1971, the approving authority approved the applicant's request and directed the applicant be furnished an Undesirable Discharge Certificate.

12.  On 12 August 1971, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 7 months and 14 days of active military service and that he accrued 117 days of time lost.

13.  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.

14.  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.

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 requests his undesirable discharge be upgraded to a general discharge.

2.  The evidence shows the applicant was AWOL during the periods  
13-21 October 1970, 1 November to 7 December 1970, 1 February to  
2 March 1971, and 7 May to 14 July 1971.  As such, an undesirable discharge was equitable and proper.

3.  The applicant's statement and post-service accomplishments are noted.  However, it 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.  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.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 August 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
11 August 1974.  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

___jpi___  ___jrh___  ___rml___  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.




__________John P. Infante_________
          CHAIRPERSON




INDEX

CASE ID
AR20070002123
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070724
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.