RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20080001530 


	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, correction of block 11b (Station or Installation at Which Effected) of his Report of Transfer or Discharge (DD Form 214) to show that at the time of his discharge it was Fort Riley, Kansas.  He also requests that his undesirable discharge be upgraded to a general discharge. 

2.  The applicant states that he was discharged from Fort Riley, Kansas, not from Fort George G. Meade, Maryland.  He states that he could not adjust to military life and that he had a brother-in-law who was killed in action in August of 1967.  He states that he just could not take the pressure and that he has not been able to hold a job at the same company since he got out of the military.

3.  The applicant provides in support of his application, a copy of an Application for the Review of Discharge or Dismissal from the Armed Forces of the United States (DD Form 293); a copy of his DD Form 214; a letter addressed to him from the National Personnel Records Center, dated 5 December 2007, informing him that they have no authority to review and approve amendments or corrections to military records and to apply to this agency; and a letter addressed to him from the Review Boards Agency, Support Division, dated 17 December 2007, explaining to him that his DD Form 293 could not be processed and that he may request an appeal of his discharge by applying to this Board.

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 2 April 1968, the applicant was inducted into the Army of the United States in Cleveland, Ohio. 



3.  The applicant was in basic training at Fort Knox, Kentucky, on 27 May 1968 when he absented himself without leave (AWOL) and he remained absent until he returned to military to military control on 21 June 1968.  However, he went AWOL again on 22 June 1968 and he remained absent in desertion until he returned to military control on 25 August 1968.  Upon his return to military control, he was transferred to Fort George G. Meade, Maryland.

4.  On 18 September 1968, the applicant was convicted by a special court-martial of being AWOL from 27 May 1968 until 21 June 1968; and from 22 June 1968 until 25 August 1968.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay in the amount of $73.00 per month for 6 months. He was transferred to Fort Riley, Kansas, on 10 October 1968.

5.  On 20 December 1968, the applicant was transferred to Fort Polk, Louisiana.  

6.  The applicant's record shows that he went AWOL on 3 January 1969, and that he remained absent in desertion until he was apprehended by civil authorities in Cleveland, Ohio, and returned to military control in Columbus, Ohio on
18 February 1969.  He was transferred to Headquarters, United States Army Special Processing Detachment, Fort George G. Meade, Maryland, on 6 March 1969, where he was placed in pre-trial confinement.

7.  On 13 March 1969, the applicant was notified that charges were pending against him for being AWOL.  He acknowledged receipt of the notification and on 26 March 1969, 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.  At the time that he submitted his request for discharge, he indicated that he understood that he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate; that he would be deprived of any and all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. 

8.  The appropriate authority approved the request for discharge on 29 April 1969.  Accordingly, on 29 April 1969, 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 6 months and 2 days of total active service and he had approximately 206 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

9.  A review of the available record 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 (Enlisted 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 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.

11.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of release from active duty (REFRAD) or 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, the evidence of record shows that he went AWOL on three separate occasions and that he had approximately 206 days of lost time due to AWOL and confinement.  Considering the seriousness of his offenses, it does not appear that his undesirable discharge is too harsh.

4.  In regard to the applicant's contention that he was discharged from Fort Riley, Kansas, his record shows that he was at Fort George G. Meade, Maryland, in pre-trial confinement at the time of his discharge and this information is correctly annotated on his DD Form 214 in accordance with the applicable regulation.  Therefore, the applicant has failed to substantiate his contention that he was discharged from Fort Riley, Kansas.

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

__JLP  __  __TSK__  __DWT__   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.




      ___        TSK                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001530



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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