RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070005051 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William Blakely

Member

Mr. Donald L. Lewy

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 be upgraded to honorable.

2.  The applicant states, in effect, that he was drafted in 1968.  He had a wife and a son at that time.  He also had a drinking problem, but did not know it until later in life.  He regrets everything that happened when he was in the military.  He is ashamed of the discharge he received.  He further states that he quit drinking 
26 years ago.  Since then, he has been a responsible and productive member of society.  He is now 60 years old and has recently retired from the Maryland State Police, where he worked as a maintenance chief.   

3.  The applicant provides copies of his outstanding job performance reports, letters of congratulations for monetary awards and retirement from the Maryland State Police,   

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 1 November 1968, the applicant was inducted into the Army of the United States for 2 years.  He completed his basic combat training at Fort Bragg, North Carolina.

3.  On 19 January 1969, the applicant was assigned to infantry advanced individual training at Fort Lewis, Washington.

4.  On 21 February 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for AWOL (absent without leave) during the period from 4 to 18 February 1969.  The punishment included a forfeiture of $30.00 pay per month for 1 month, and 
30 days restriction.

5.  On 25 February 1969, the applicant was recycled into another infantry advanced individual training unit.  

6.  On 18 April 1969, he completed his infantry training and was placed on orders for the Republic of Vietnam.

7.  On 26 May 1969, the applicant accepted NJP for AWOL during the period from 4 to 21 May 1969.   The punishment included 14 days restriction and extra duty.

8.  Records show that the applicant was again instructed to comply with his orders for assignment to the Republic of Vietnam.

9.  On 4 September 1969, the applicant was convicted by special court-martial of AWOL during the period from on or about 15 June to 21 August 1969.  His sentence consisted of confinement at hard labor for 30 days, restriction for 
30 days, and reduction to private, pay grade E1.

10.  On 21 October 1969, the applicant was convicted by special court-martial of AWOL during the period from on or about 19 to 24 September 1969.  His sentence consisted of admonishment.

11.  On 12 December 1969, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 26 October to on or about 8 December 1969.

12.  On 16 December 1969, 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. 

13.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to 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.   

14.  On 31 December 1969, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 31 December 1969, the applicant was discharged accordingly.  He had completed a total of 10 months and 4 days of creditable active military service and had accrued 117 days of time lost due to AWOL and confinement.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  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 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.  A discharge under other than honorable conditions is normally considered appropriate.

17.   Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a punitive discharge and confinement for 
1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant's record is devoid of any redeeming service.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
5.  The applicant’s good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_WDP___  __WB___  _DLL____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





__  William D. Powers   __
          CHAIRPERSON




INDEX

CASE ID
AR20070005051
SUFFIX

RECON
 
DATE BOARDED
20070816
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.