RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  9 August 2007
	DOCKET NUMBER:  AR20070002819 


	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. Jeffrey C. Redmann

Chairperson

Ms. Rea M. Nuppenau

Member

Mr. Dennis J. Phillips

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 conditions other than honorable conditions, be upgraded.

2.  The applicant states, in effect, that he was not represented by anyone.  After Vietnam, he could not adjust to stateside duty or even perform his supply duties, since he was an armorer all those years.  His mind was so confused and he did not know which way to turn.  He turned his way, not the Army's. 

3.  The applicant provides a copy of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 9 August 1965 and 18 June 1970, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 18 June 1970, 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 29 March 1963.  The applicant successfully completed basic combat training at Fort Gordon, Georgia, and attended advanced individual training at Fort Lee, Virginia, for training in military occupational specialty (MOS) 76K, General Supply Specialist.  

4.  The applicant was promoted to pay grade E-4 on 24 November 1964.  He served until he was honorably discharged on 9 August 1965, for immediate reenlistment.  He reenlisted on 10 August 1965.  He was promoted to specialist five (SP5/E-5) on 22 November 1967.  He served in Vietnam from 20 September 1967 through 20 September 1968.   


5.  On 5 June 1968, the applicant was punished under Article 15, UCMJ, for failing to go to his appointed place of duty on 4 June 1968.  His punishment consisted of a forfeiture of pay and 14 days restriction. 

6.  On 3 April 1969, the applicant stole a 1960 Buick automobile.  On 3 May 1969, while operating the stolen vehicle, he fled after colliding with a 1968 Chevrolet sedan.  On 9 May 1969, while being detained for questioning by civilian police, he escaped and fled in the stolen vehicle.  On that same day, he obtained gasoline and fled without paying.  He was apprehended by civil authorities on 10 May 1969 during a routine traffic check.  

7.  On 18 June 1969, the applicant pled guilty to larceny.  He was sentenced to pay the cost of prosecution, make restitution of $179.00, and to be confined in the county jail for a period of not less than 3 months or more than 23 months.

8.  On 22 July 1969, while confined, the applicant was informed that he was being recommended for elimination from the service under the provisions of Army Regulation 635-206, due to his conviction by civil authorities.  He was advised of his options. 

9.  On 19 September 1969, the applicant waived his rights and elected not to submit a statement in his own behalf.

10.  On 27 October 1969, the battalion commander requested that the applicant 
be discharged from the service, under the provisions of Army Regulation 635-206, for misconduct.  He indicated that the applicant was presently confined in the Indiana County Jail, Indiana, Pennsylvania.  He based his request on the applicant's civil conviction.  His recommendation was returned for a statement from the applicant as to whether he intended to appeal his civil conviction.  

11.  The applicant was released from civil confinement on 26 November 1969 and was returned to military control for further disposition.

12.  On 18 December 1969, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 12 April 1969 to 22 April 1969 and from 30 April 1969 to 20 November 1969.  His sentence consisted of a reduction to pay grade E-3.




13.  On 29 January 1970, the applicant's commander recommended that the applicant be separated from the service, under the provisions of Army Regulation 635-206, for misconduct, with an undesirable discharge.  He based his recommendation on the applicant's civil court conviction on the charge of grand larceny.  He was advised of his options.

14.  On 5 February 1970, charges were preferred against the applicant for being AWOL from 19 January 1970 through 29 January 1970 and for being absent from his unit on 30 January 1970. 

15.  On 10 June 1970, 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 not to submit a statement in his own behalf.   

16.  On 18 June 1970, the separation authority approved the applicant's request for discharge and directed that he be reduced to private, E-1, and he be furnished an undesirable discharge.  

17.  The applicant was discharged on 18 June 1970.  He had a total of 6 years, 10 months, and 6 days of net active service and 135 days of time lost due to AWOL and confinement.

18.  On 4 September 1974, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

19.  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.  





20.  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.

21.  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.

22.  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 evidence of record shows that the applicant was arrested by civil authorities and was charged with grand larceny of an automobile and gasoline.  He pled guilty and was sentenced to pay the cost of prosecution, to make restitution of $179.00, and to be confined for a period of not less than 3 months or more than 23 months.  He was informed that he was being recommended for separation under the provisions of 635-206, for civil conviction, while he remained confined, and was advised of his options.  He waived his rights and elected not to submit a statement in his own behalf.  He was released from civil confinement and was returned to military control before his discharge was approved.



2.  The applicant was returned to military control and was later found guilty by a special court-martial for AWOL.  He was recommended for discharge under the provisions of 635-206, for misconduct, civil conviction, with the issuance of an undesirable discharge.  He was advised of his options.

3.  The evidence shows that charges were preferred against the applicant for AWOL on two occasions.  He later voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial.  He waived his rights and his separation was approved.  He was discharged in the pay grade of E-1 and furnished an undesirable discharge. 

4.  The applicant contends that he was not represented by anyone.  However, the evidence shows that he was advised by counsel, a Judge Advocate General Corps Captain, of his options and waived his rights to counsel.   

5.  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.

6.  The applicant also contends that after Vietnam he could not adjust to stateside duty or even perform his supply duties, that his mind was so confused and he did not know which way to turn.  It is noted that he could have informed his command of adjustment problems that he was experiencing, after his return from Vietnam.  His command could have provided him assistance in seeking out the appropriate and necessary agencies to assist him with his adjustment problems.  It is apparent that he did not make the right choices and do the right thing.  The overall evidence and his statement show he took another route, which was to do things his way, as evidenced by his misconduct which led to his discharge.  

7.  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.






8.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 4 September 1974.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 3 September 1977.  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

__rn____  __JCR___  __DJP __  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.




_____Jeffrey C. Redmann___
          CHAIRPERSON




INDEX

CASE ID
AR20070002819
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070809
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19700618
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.