RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070008419 


	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. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Chester A. Damian

Member

Mr. Ronald D. Gant

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 an honorable discharge.

2.  The applicant states, in effect, that the type of discharge that he received is too harsh considering the nature of his offenses. 

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

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 27 January 1969, the applicant enlisted in the Army in Philadelphia, Pennsylvania, for 2 years, in the pay grade of E-1.  He successfully completed his training as a supply clerk. 

3.  He was promoted to the pay grade of E-2 on 27 April 1969 and he was promoted to the pay grade of E-3 on 10 July 1969.

4.  The applicant was honorably discharged on 25 May 1970 for immediate reenlistment.  He had completed 1 year, 3 months, and 29 days of net active service this period.

5.  On 26 May 1970, the applicant reenlisted in the Army for 4 years.

6.  On 28 January 1971, the applicant was notified that nonjudicial punishment (NJP) was being imposed against him for failure to go to his appointed place of duty; for behaving with disrespect toward his superior commissioned officer (CO); 
and for being disrespectful in language toward his superior noncommissioned officer (NCO).  He acknowledged receipt of the notification and on 1 February 1971 he opted to submit an oral statement to the proposed NJP.

7.  On 5 February 1971 punishment was imposed against the applicant, which consisted of a reduction to the pay grade of E-2 (suspended for 60 days) and a forfeiture of pay in the amount of $80.00 per month for 2 months.  On the same day, the applicant submitted a statement indicating that he was charged with missing two formations that were his fault because he fell asleep.  He stated that was disrespectful to his superior NCO because he was asleep and "the man" dumped him out of bed and he had no right to do so.  He stated that he was not disrespectful toward his CO.  He stated, in effect, that when he made his comment to his CO he was referring to the Army, not a certain man.  The applicant stated that he had been in the service for over 2 years and that he had never been in any trouble.  He stated that he had a wife in Thailand and he had her on his mind because he was too far away from her.  He stated that he had been robbed of $85.00 and that nothing was done about it.  He stated that he was trying to find a way back to Thailand to get his wife; that he was airborne qualified and did not believe in starting or getting into trouble; and that the NCO said he hit him and the NCO was lying, so he blew up.

8.  The appropriate authority considered the facts and circumstances as presented by the applicant.  On 11 February 1971, the applicant’s appeal was denied.

9.  On 14 June 1971, the applicant was convicted by a summary court-martial for being absent without leave (AWOL) from 7 May until 11 May 1971; from 11 May until 15 May 1971; and from 24 May until 30 May 1971.  He was sentenced to confinement at hard labor for 7 days and a reduction to the pay grade of E-1.

10.  On 9 July 1971, the applicant was notified that charges were pending against him for being AWOL from 2 July until 8 July 1971 and for willfully disobeying a lawful order received by his superior CO.

11.  On 21 July 1971, the applicant was notified that charges were pending against him for being AWOL from 15 July until 16 July 1971 and for escaping from custody on 15 July 1971.

12.  The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Transfer or Discharge (DD Form 214) that he was furnished at the time of his discharge indicates that he was discharged on 
19 August 1971, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, and furnished an Undesirable Discharge Certificate.  He had completed 2 years, 2 months, and
14 days of total active service. 

13.  A review of the available records fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

DISCUSSION AND CONCLUSIONS:

1.  There appears to be no error in the type of discharge directed considering all the facts of the case.

2.  The applicant was AWOL on at least three separate occasions.  He was convicted by a summary court-martial and he had NJP imposed against as a result of his acts of indiscipline.  Considering the nature of his offenses, it does not appear that his undesirable discharge was too harsh.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

3.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  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

__CD___  __RDG__  __CAD___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____Carmen Duncan______
          CHAIRPERSON




INDEX

CASE ID
AR20070008419
SUFFIX

RECON

DATE BOARDED
20071030
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  360
144.0000/ADMINISTRATIVE DISCHARGE
2.  689
144.7000/REQ DISCHARGE FTGOS
3.  821
144.9231/AWOL
4.

5.

6.