RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           5 February 2004                   
	DOCKET NUMBER:   AR2003088580

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Karen A. Heinz		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, in essence, that his general discharge (GD) under honorable conditions be upgraded to that of a fully honorable discharge (HD).  

2.  The applicant states, in essence, that he was unfit to serve in the military because he was unable to adapt to military life.

3.  The applicant provides nothing in support of his request. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 30 September 1976, the date his undesirable discharge (UD) was upgraded to a GD by the Army Discharge Review Board (ADRB).  The application submitted in this case is dated 21 March 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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.
3.  On 19 July 1974, the applicant enlisted in the Regular Army (RA) for a period of 3 years.  While assigned to Fort Polk, Louisiana for training, the applicant left his unit in an absent without leave (AWOL) status from 28 September 1974 until he was apprehended by civil authorities and returned to military control at Kirtland Air Force Base, New Mexico on 24 December 1974.  He was then placed in pre-trial confinement at the Personnel Control Facility (PCF) at Fort Sill, Oklahoma.

4.  On 17 January 1975, charges were preferred against the applicant for the above period of AWOL.

5.  On 20 January 1975, the applicant underwent both a mental status evaluation and a medical examination, which determined he was qualified for separation.

6.  On 21 January 1975, the applicant consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200.  He was advised that he could receive a UD.  He acknowledged that he understood the ramifications of receiving a UD.  He contended in a statement submitted in his own behalf that he struggled through basic training and that he left his unit in an AWOL status because he was unable to adapt to military life.  He also stated that he spoke to the post chaplain about his desire for separation and he was advised that only his commander could make that decision.

7.  On 24 January 1975, the applicant's commander at the PCF recommended approval of the applicant’s request for discharge under the provisions of chapter 10, AR 635-200, for the good of the service with a UD.  The applicant's commander stated that the applicant had become disenchanted with the Army and that further retention would not be in the best interest of the Army.  On 29 January 1975, the separation authority approved the recommendation and directed that the applicant be separated with a UD.

8.  On 3 February 1975, the applicant was separated with a UD under the provisions of chapter 10, AR 635-200.  He had 3 months and 3 days of creditable active Federal service and 102 days of lost time.

9.  On 8 October 1976, the ADRB reviewed the applicant's case and upgraded his UD to a GD.  The reason for separation remained unchanged.

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.  At the time of the applicant's separation, a UD or a GD was appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available record indicates the applicant's conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service did not warrant a fully honorable discharge. 

2.  The applicant had many legitimate avenues through which to obtain assistance with whatever problems he may have experienced without committing the misconduct which led to the separation action under review.

3.  Records show the applicant should have discovered the error or injustice now under consideration in September 1976 after the ADRB review.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired in 1979, which was 3 years after the ADRB review.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__fne___  __jpi___  __kah___  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.  

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088580	
SUFFIX		
RECON		
DATE BOARDED	20040205	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19750203	
DISCHARGE AUTHORITY	AR635-200, Chap 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.