RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 October 2007
	DOCKET NUMBER:  AR20070008489 


	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 or a general discharge.

2.  The applicant states that his discharge was inequitable because the Army did not take into consideration the significant personal issues that he was experiencing at the time.  He states that he was only 21 years old when he joined the service with all good intentions to serve his country.  He states that his wife was equally young and that she became pregnant with their first child.  He states that his wife could not adjust to military life and that she would not leave North Carolina to be with him.  He states that his wife was scared, alone and pregnant. He states that his wife threatened several times to leave him and take their child so he kept leaving to go home.  He states that he truly wanted to stay in the service; however, he could not withstand the pressure of losing his wife and child.  The applicant states that the Army would not release him from his service obligation so he did what he believed he had to do for his family.  He states that he served his country to the best of is abilities and that he left only after going through extreme hardship.

3.  The applicant provides in support of his application a letter from an individual dated 15 December 2004; a letter from his ex-wife dated 29 July 2006; and an undated letter from his son all attesting to his good character and post service conduct.  He also provides a criminal record search on him from the State of North Carolina.

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.  The applicant was inducted into the Army on 19 October 1966 in Charlotte, North Carolina.

3.  The available records show that the applicant was still in training when he was convicted by a special court-martial on 11 May 1967, for being absent without leave (AWOL) from 7 February until 6 April 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay in the amount $36.00 per month for 6 months.

4.  On 10 October 1967, the applicant was convicted by a special court-martial of being AWOL from 25 May 1967 until 30 August 1967.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay in the amount of $37.00 per month for 6 months.

5.  On 30 October 1967, nonjudicial punishment (NJP) was imposed against him for being absent from his place of duty from 28 October 1967 until 30 October 1967.  His punishment consisted of an oral reprimand.

6.  The applicant went AWOL again on 2 December 1967 and he remained absent in desertion until he was apprehended by civil authorities and returned to military control on 24 July 1968.  

7.  The available records indicate that the applicant was notified that charges were pending against on for being AWOL.  On 7 August 1968, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  

8.  The appropriate authority approved the request for discharge on 26 September 1968 and he directed the issuance of an undesirable discharge.  Accordingly, on 10 October 1968, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 5 months and 15 days of net active service and he had over 1 year of lost time due to AWOL and confinement. He was furnished an Undesirable Discharge Certificate.

9.  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.



10.  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.  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 the facts of the case.

3.  The applicant's contentions have been noted.  However, they are not sufficiently mitigating to warrant the relief requested.  There is no evidence in the available records nor has the applicant submitted any evidence to show that he sought help through his chain of command for problems that he may have been experiencing at home.  

4.  His records indicate that he had no desire to complete his service obligation while he was in the Army.  He was convicted by two special courts-martial and he had NJP imposed against him as a result of his acts of misconduct.  He had over 1 year of lost time due to AWOL and confinement.   Considering the nature of his offenses it appears that the applicant's undesirable discharge appropriately reflects his overall record of service.

5.  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.

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

__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
AR20070008489
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.