RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  18 November 2003
	DOCKET NUMBER:  AR2003085216

	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.  

	Mr. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Mark D. Manning		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 a change in the character of his service at the time of his discharge.

2.  The applicant states that he had 225 days of lost time and his reentry code was just.  He does not feel that the character of his service is just and this type of discharge would not be issued today.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice, which occurred on 9 January 1974, the date of his discharge.  The application submitted in this case is postmarked 6 January 2003.

2.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

3.  The applicant enlisted and entered active duty on 31 August 1971.  He completed training as an infantryman and was assigned to Germany.  He was promoted to pay grade E-3 effective 28 January 1972.

4.  Between 2 June and 26 December 1972 the applicant was absent without leave (AWOL) for 30 days.  Effective 22 March 1973, the applicant was granted 23 days emergency leave due to the illness of his father.  Between 14 April and 17 October 1973 he was AWOL for 157 days.  On 18 October 1973 he was apprehended by civil authorities and returned to military control.

5.  On 2 November 1973, charges were preferred for the 157 days AWOL.  On 5 December 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial.  His request acknowledged that he might receive a discharge under other than honorable conditions and might be deprived of many or all Army and veteran's benefits.  In a statement in his own behalf he wrote that he went AWOL because of family problems and that the Army made his problems worse.  He violently wanted out of the Army. 

6.  On 21 December the separation authority, a major general, approved his request and directed separation in the pay grade of E-1 with an Undesirable Discharge Certificate.

7.  Effective 9 January 1974, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 10-1.  His lost time is recorded as 225 days and his creditable service as 1 year, 10 months, and 5 days.

8.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

9.  On 15 April 1981 the Army Discharge Review Board, in a unanimous vote, denied the applicant's request for an upgrade of his discharge.  That board determined that his discharge was both proper and equitable based on a review of all the facts of the case.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offenses he was charged with.

2.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Current standards do not change the separations authority's ability to issue a discharge under other than honorable conditions for lengthy periods of AWOL.

3.  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 this requirement.

4.  Records show that the applicant should have discovered the injustice now under consideration on 15 April 1981, the date of his denial by the Army Discharge Review Board.  Thus, the applicant should have filed an application with the ABCMR within 3 years from 15 April 1981.  However, the applicant did not do so and has not provided a compelling explanation justifying failure to file within the 3-year statute of limitations.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__js___  ___be___  __mm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		__John N. Sloan___
		        CHAIRPERSON

INDEX

CASE ID	AR2003085216	
SUFFIX		
RECON		
DATE BOARDED	20031118	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19740109	
DISCHARGE AUTHORITY	AR 635-200, CH 10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.