RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 July 2007
	DOCKET NUMBER:  AR20070002401 


	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:


Ms. Jeanette R. McCants 

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

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 a general (under honorable conditions) or honorable discharge.

2.  The applicant states, in effect, that he has been out of the Army for 34 years and would go back if necessary.  He went absent without leave (AWOL) two times, once for 30 days, and was confined for 28 days.  The second time, he went AWOL for 9 months and was court-martialed; however, he was only charged with 1 day of being AWOL.  He went to a unit and they said he was AWOL and he had to go to trial and he was given an undesirable discharge.  He also states that he was treated wrong because they did not find him guilty for the 9 months of AWOL which was dismissed.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 May 1972, the date of his discharge.  The application submitted in this case is dated 20 December 2006 but was received for processing on 16 February 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 was inducted into the Army of the United States on 19 August 1970.  The applicant successfully completed basic combat training (BCT) at Fort Jackson, South Carolina, and advanced individual training at Fort Sill, Oklahoma.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 13A, Field Artillery Basic.  




4.  On 9 October 1970, while attending BCT, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 5 to 8 October 1970.  His punishment consisted of a forfeiture of pay and 14 days of restriction and extra duty.  

5.  The applicant was advanced to pay grade E-2 on 19 December 1970.

6.  Item 44 (Time Lost), of the applicant's DA Form 20 (Enlisted Qualification Record), shows that he was AWOL from 17 to 18 October 1971 (2 days) and confined from 19 through 26 October 1971 (8 days).

7.  On 26 October 1971, the applicant was charged by a special court-martial of being AWOL from 11 January 1971 to 2 September 1971.  He pled not guilty to the charge which was dismissed by a military judge without prejudice.

8.  On 11 February 1972, the applicant was convicted by a special court-martial of being AWOL from 19 December to 1971 to 6 January 1972.  His sentence consisted of a reduction to pay grade E-1 and a forfeiture of pay, of $90.00, for 3 months.

9.  Item 44, of the applicant's DA Form 20, shows that he was confined from 19 January to 10 February 1972 (23 days), was AWOL from 4 March 1972 to 
24 April 1972 (52 days), and confined from 25 April 1972 to 14 May 1972 (20 Days).

10.  On 28 April 1972, the applicant consulted with counsel and 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 an undesirable discharge were issued.  He waived his rights and elected to submit a statement in his own behalf.  He stated that his wife threatened to leave him if he did not get out of the service. 

11.  On 12 May 1972, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.  

12.  The applicant was discharged on 31 May 1972, in the pay grade of E-1.  He had a total of 10 months 8 days of creditable service and 341 days of lost time due to being AWOL and in confinement.

13.  On 7 February 1978, the Army Discharge Review Board, under the SDRP (Special Discharge Review Program) denied the applicant's petition to upgrade his discharge.

14.  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.  

15.  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.

16.  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.

17.  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's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request 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 has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The evidence of record shows that the applicant accumulated a total of 341 days of lost time due to frequent incidents of AWOL.  A cumulative absence of this duration is serious and there is insufficient evidence to show that he now deserves an upgrade of his discharge.  

5.  The applicant alleges that he was treated wrong because he was found not guilty for 9 months of AWOL which was dismissed by a military judge without prejudice.  At the time he applied for his discharge in lieu of trial by court-martial he was pending trial for an absence of 52 days.  It was this absence which set the foundation for him to seek a discharge for the good of the service.

6.  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.

7.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 7 February 1978.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 6 February 1981.  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

___JM___  __JCR___  ___TMR   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.




____Jeanette McCants______
          CHAIRPERSON




INDEX

CASE ID
AR20070002401
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070731
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19720531
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.