RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 August 2007
	DOCKET NUMBER:  AR20070002818 


	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:


Mr. Curtis L. 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, in effect, that his undesirable discharge, characterized as under other than honorable conditions (UOTHC), be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he resided in Houston, Texas, with his mother until she died in an automobile accident in 1961.  He was 13 years old.  His family was split up among foster homes and orphanages.  His father resided in Little Rock, Arkansas.  His father did not take on any of the six kids after his mother’s death.  He dropped out of high school after completing the 9th grade.  He had failed three grades and was 17 in the 9th grade.  As soon as he turned 18, he joined the Army.  After basic at Fort Polk, Louisiana, he was sent to Aberdeen, Maryland, for fire direction control (FDC).  He again failed because he did not have the math background.  He was sent back to Fort Polk, Louisiana, as permanent party, as a cook.  

3.  The applicant continues by stating that he worked as a cook at Fort Polk for a year then he came down on levy.  He was given a choice of Vietnam or Germany and he chose Germany.  He was in Germany about half a year before coming down on levy for Vietnam again.  He went home to Houston and he remained there in an AWOL (absent without leave) status for 138 days.  He knew he would be caught eventually; therefore, he voluntarily turned himself in.  He was sent to Vietnam and stayed for almost 13 months.  He returned to the United States and was discharged under other than honorable conditions.  

4.  The applicant states that he was young, he had a poor family life, low esteem, and he made a number of bad choices.  He was afraid of going to Vietnam and went AWOL.  He had many excellent ratings during his service and feels that the ratings spoke of the character of his service.  He feels that his service should rightfully have been classified as honorable.  He requested that the Discharge Review Board upgrade his discharge.

5.  The applicant provides a copy of his DD Form 214 (Armed Forces of the Untied States Report of Transfer or Discharge), a copy of his DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), and a copy of a statement from his counsel, in support of his request. 





CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 5 March 1971, the date of his discharge.  The application submitted in this case is dated 12 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 enlisted in the Regular Army on 31 August 1966, at the age of 18 years and 23 days.  His date of birth is 9 August 1948.  The applicant successfully completed basic combat training at Fort Polk, Louisiana.  He was scheduled to attend advanced individual training at Aberdeen Proving Grounds, Maryland, for training in military occupational specialty (MOS, 41C, Fire Control Instrument Repairer.   

4.  On 24 March 1967, he was reclassified into MOS 94B20, Cook.  He was promoted to pay grade E-4 on 31 October 1968.  He served in Vietnam from 30 July 1968 to 29 July 1969.   

5.  Between 9 December 1968 and 3 November 1969, he received nonjudicial punishment (NJP) on four occasions under Article 15, of the UCMJ (Uniform Code of Military Justice), for wrongful appropriation of government property on two occasions, for destruction of government property, for being AWOL from 
20 to 21 April 1969, and for violation of a lawful general regulation on two occasions.  His punishments consisted of a reduction to pay grades E-3, E-2 and E-1, in succession, forfeitures of pay, and restriction and extra duties. 

6.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows that he was AWOL from 8 March 1968 to 23 July 1968 (138 days), from 29 November 1969 to 12 November 1970 (349), and 4 and 5 March 1971 (2 days).

7.  Charges were preferred against the applicant on 17 December 1970, for having been AWOL from 29 November 1969 to 5 November 1970.  

8.  On 18 January 1971, he 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 a discharge characterized as UOTHC were issued.  He waived his rights and elected to submit a statement in his own behalf. 

9.  Counsel provided a statement in the applicant’s behalf. This same statement was provided to this Board.  Counsel stated that the applicant was pending court-martial for being AWOL.  The highlight portion, of the statement, indicates that he had four conduct ratings of excellent, one conduct rating of good, and one conduct rating of fair.  He had three efficiency ratings of excellent and three efficiency ratings of good, and that he had no prior court-martial conviction.

10.  On 9 February 1971, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.  

11.  The applicant was discharged in the rank/pay grade of Private/E-1, on 5 March 1971.  He had a total of 3 years, 2 months, and 1 day of net active service and 138 days of time lost due to being AWOL and 2 days lost subsequent to his ETS.

12.  The applicant applied to the Army Discharge Review Board (ADRB) on 29 November 2006 for an upgrade of his discharge; however, the ADRB was precluded from accepting his application due to its statue of limitations (15 years).  This Board accepted his application (DD Form 149), dated 12 February 2007.

13.  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. 

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.  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.

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, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request for discharge 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.  There is no evidence in the applicant's records, and the applicant has provided none, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  Careful consideration has been given to the applicant's statement concerning his history.  However, it does not support an upgrade of his UOTHC discharge to a general or an honorable discharge.

5.  The applicant stated that he was young, disadvantaged, and that he had low self esteem.  It is noted that he was 18 years and 23 days of age at the time of enlistment.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who served successfully and completed their term of 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 should have discovered the alleged error or injustice now under consideration on 5 March 1971; therefore, the time for       the applicant to file a request for correction of any error or injustice expired on 4 March 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

__RWS__  __KSJ __  __CLG__  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 L. Greenway ________
          CHAIRPERSON




INDEX

CASE ID
AR20070002818
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070802
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19710305
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.