RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 August 2007
	DOCKET NUMBER:  AR20070002217 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Curtis Greenway

Chairperson

Mr. Robert W. Soniak

Member

Ms. Karmin S. Jenkins

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 discharge be upgraded.

2.  The applicant states, in effect, that he did not know at the time he accepted the discharge that he would not get any benefits.  He further states that President Carter granted amnesty to Vietnam veterans who received a less than honorable discharge. 

3.  The applicant did not provide any additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 14 September 1971, the date of his discharge.  The application submitted in this case is dated 24 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 that he was inducted in the Army of the United States on 28 April 1969.  Records further show that he completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 94B (Cook).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

4.  The applicant's records do not show any significant acts of valor during his military service.

5.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 9 June 1970, for being absent without leave (AWOL) during the period 6 June 1970 to 6 June 1970.

6.  Item 44 (Time Lost Under Section 972, Title 10, United States Code) of the applicant's DA Form 20 (Enlisted Qualification Records) show that the applicant was AWOL during the period 30 June 1970 through 2 November 1970, was confined during the period 6 November 1970 through 2 December 1970, was AWOL during the period 18 December 1970 through 19 December 1970, was AWOL during the period 20 December 1970 through 3 August 1971, and was confined during the period 6 August 1971 through 9 August 1971.

7.  On 6 August 1971, charges were preferred against applicant for being AWOL on or about 30 June 1970 to on or about 3 November 1970 and on or about 18 December 1970 to on or about 4 August 1971.

8.  On 9 August 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 under other than honorable conditions 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.

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood that if the 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.  The applicant elected not to submit a statement on his own behalf.

10.  On 16 September 1971, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  On 14 September 1971, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 1 year, 4 months, and 2 days of creditable active military service with 280 days of lost time due to AWOL and confinement.

11.  On 31 August 1976 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions (UOTHC) is normally considered appropriate.

13.  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.

14.  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

15.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he was not aware that this type of discharge would not yield him any benefits.

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 did not meet the criteria for an upgraded discharge under the Special Discharge Review Board Program.  The applicant’s record of service shows he had 285 days of lost time and received nonjudicial punishment.  The applicant did not serve in the Republic of Vietnam, was not wounded in action, did not receive a personal military decoration, and did not receive an honorable discharge from prior service.  In addition, there were no compelling reasons to the contrary that his discharge should not have been upgraded due to the numerous infractions of Army Regulations and his contempt toward military discipline.

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 either a general or an honorable discharge

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 31 August 1976.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 30 August 1979.  However, 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

__cg____  __rws___  __ksj___  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.



							Curtis Greenway
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070002217
SUFFIX

RECON

DATE BOARDED
20070802
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19710914
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.