RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 July 2007
	DOCKET NUMBER:  AR20070002628 


	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. James E. Anderholm

Chairperson

Mr. Jose A. Martinez

Member

Mr. William F. Crain

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 be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that he was young and immature during his military service.  The applicant continues that he was only absent without leave (AWOL) for a few days during his active duty service.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 8 August 1973 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant requests correction of an alleged error or injustice which occurred on 8 August 1973, the date of discharge.  The application submitted in this case is dated 13 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 records show he enlisted in the Regular Army on 9 June 1972 at the age of 18.  Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was private/pay grade E-2.

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 that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 10 August 1972, for being absent without leave (AWOL) from on or about 31 July to 9 August 1972.  He was sentenced to forfeiture of $67.00 pay for one month, 14 days restriction, and 14 days extra duty.
 
6.  Service records indicate additional acceptance of NJP under the provision of the UCMJ on the following occasions: on 16 August 1972, for disorderly conduct, with punishment of forfeiture of $67.00 pay for one month, 14 days restriction, and 14 days extra duty;  on 15 December 1972, for failure to go to his appointed place of duty, with punishment of forfeiture of $74.00 pay for one month;  on 26 April 1973, for disrespectful language toward a superior noncommissioned officer, with punishment of reduction to private/pay grade E-1 and confinement for seven days in the post Correctional Custody Facility;  and on 9 May 1973, for assaulting a fellow soldier, with punishment of forfeiture of $100.00 pay for one month, 30 days confinement, of which 15 days were suspended for 4 months.  

7.  On 14 June 1973, charges were preferred against the applicant for stealing and assault.  On 11 July 1973, an additional charge was preferred for wrongful use of marijuana, a controlled substance.  

8.  On 19 June 1973, 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.

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 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.

10.  On 26 July 1973, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions characterization of service.  On 8 August 1973, the applicant was discharged accordingly.  The DD Form 214 the applicant was issued at the time of his discharge confirms he was discharged with an undesirable discharge.  This form further confirms that he completed a total of 1 year, 1 month, and 20 days of creditable active military service and that he accrued 9 days of time lost due to AWOL.
11.  On 13 May 1980, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge. 

12.  Army Regulation 635-200 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 trail by court-martial.  At the time, a general or undesirable discharge was 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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’s contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  Records show that the applicant was 18 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  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.  Records show 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.

4.  The applicant's record of service shows that he accepted nonjudicial punishments under the provisions of Article 15 of the UCMJ for being AWOL, assault, disrespectful language toward a superior noncommissioned officer, and failure to go to his appointed place of duty.  The service record further shows he was charged with wrongful use or marijuana, stealing, and physical assault. 

5.  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 as unsatisfactory. Therefore, the applicant is not entitled to a general or an honorable discharge.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 13 May 1980.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 12 May 1983.  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

__JEA__  _JAM___  __WFC___  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.




__James E. Anderholm_
          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.