RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080000779 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 that had two periods of service.  He questions why he was called back into the Army to complete a second period of service if his first period of service was so bad. 

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 28 April 1970, the applicant enlisted in the Regular Army (RA) in Charlotte, North Carolina, for 3 years, in the pay grade of E-1.  At the time of his enlistment, he indicated that he had no prior service on his enlistment contract.

3.  The applicant records show that he was in basic training on 20 July 1970, when nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 22 June 70 until 23 June 1970 and from 1 July 1970 until 14 July 1970.  His punishment consisted of a forfeiture of pay in the amount of $60.00 per month for 2 months, and 2 hours of extra duty per day for 45 days.

4.  On 6 August 1970, NJP was imposed against the applicant for being AWOL from 1 August 1970 until 3 August 1970.  His punishment consisted of a forfeiture of pay in the amount of $50.00 and extra duty for 7 days.



5.  On 10 February 1971, the applicant was notified that charges were pending against him for being AWOL from 4 December 1970 until 8 February 1971.  The applicant acknowledged receipt of the notification and on 23 February 1971, after consulting with counsel, he 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.  

6.  The appropriate authority approved the request for discharge on 24 February 1971, and he directed the issuance of an undesirable discharge.  Accordingly, on 4 March 1971, 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 only 7 months and 10 days of net active service during this period and he had approximately 84 days of lost time due to AWOL.  He was furnished an Undesirable Discharge Certificate (UDC).

7.  An investigation was conducted by The Adjutant Generals Office, Separations and Retention Affairs Division.  On 21 April 1971, the applicant's Commanding General (CG) was notified that the investigation revealed that the applicant initially enlisted in the RA on 30 September 1966 and that on 10 June 1969, he was discharged under the provisions of Army Regulation 635-206, due to misconduct.  He was furnished a 284 (convicted or adjudicated a juvenile offender by civil court) separation program designator; a reentry eligibility (RE) code 4; and a UDC.  The applicant's CG was also informed that at the time of his enlistment on 28 April 1970, he claimed that he had no prior service.  The CG was told that since the applicant's prior service presented a bar to his reenlistment, his 28 April 1970 enlistment was fraudulent.

8.  The DD Form 214 that he was furnished at the time of his discharge on 10 June 1969 shows that the applicant completed only 7 months and 14 days of net active service for this period and that he had approximately 759 days of lost time due to AWOL and confinement.

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 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  It provided, in pertinent part, that members would be processed for separation for under that regulation for misconduct, AWOL, Desertion, fraudulent entry and conviction by civil authorities.  An undesirable discharge was normally considered appropriate.

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 available facts of the case.

3.  The applicant's contentions have been noted.  However, they are unsubstantiated by the evidence of record.  His records show that that he had approximately 759 days of lost time due to AWOL and confinement during his initial period of enlistment.  He was discharged and furnished a UDC and a RE-4 code which means that he was barred from reenlistment.  He fraudulently enlisted on 4 March 1971 indicating that he had no prior service on his enlistment contract and he submitted a request for discharge for the good of the service, in lieu of trial by court-martial after he accumulated approximately 89 days of lost time.  There is no evidence in the available records nor has the applicant submitted any evidence that shows that he was called to return to the Army to complete a second period of service.

4.  It is not clear as to which undesirable discharge that the applicant is requesting to be upgraded.  However, considering all the fact of the case, it appears that both of the discharges that he was furnished appropriately reflect his overall record of service.  It does not appear that either of the undesirable discharges that he received was too harsh or unjust. 

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

__x __  _x  __x  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.





      _____x___
                 CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000779



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508