RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            8 January 2004                  
	DOCKET NUMBER:   AR2003088713

	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. Jeanie M. Biggs		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. John T. Meixell		Member	
	Ms. Linda M. Baker		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 effect, that his undesirable discharge (UD), under conditions other than honorable, be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his service was exemplary, to include a tour in Vietnam, until his father had a heart attack.  He pointed out that he was honorably discharged from the Armed Forces of the United States prior to reenlisting.

3.  The applicant further states, in effect, that as a result of his father’s heart attacks, he could not continue the family business.  The applicant felt it was his duty to support his father.  He requested a hardship discharge and the request was denied so he went absent without leave (AWOL).  He also states that he made the wrong choice by going AWOL.

4.  The applicant provides his self-authored statement, two letters attesting to his excellent post service conduct and a copy of his DD Form 293 (Application For The Review of Discharge Or Dismissal From The Armed Forces Of The United States).

CONSIDERATON OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred on 
14 September 1973.  The application submitted in this case is dated 3 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 8 October 1970 he enlisted in the Regular Army (RA) for 3 years.  
He completed the training requirements and was awarded Military Occupational Specialty (MOS) 35G (Medical Equipment Repairman).  He was assigned to Alaska on 15 June 1971 and Vietnam on 18 January 1972.  He was awarded the National Defense Service Medal and the Vietnam Service Medal.  He advanced to the pay grade of E-4 and was honorably discharged on 11 July 1972.

4.  On 12 July 1972, the applicant immediately reenlisted for a 6 year term for his present duty assignment and a reenlistment bonus.

5.  On 8 March 1973, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of $40.00 per month for one month.  He did not appeal the punishment.

6.  He accepted NJP under Article 15, UCMJ again on 4 April 1973 for AWOL from 2 April 1973 to 3 April 1973.  His punishment consisted of a forfeiture of $50.00 per month for one month.  He did not appeal the punishment.

7.  Court-martial charges were preferred against the applicant on 25 June 1973, charging that he did on or about 23 April 1973, without authority, absent himself and did remain absent until on or about 16 May 1973.  He was convicted by Special Court-Marital of the charge and sentenced to 45 days restriction and reduction to the pay grade of E-4.  He did not appeal the punishment.

8.  On 17 August 1973, court-martial charges were preferred against the applicant for breaking restriction and for being AWOL from 11 June through 30 July 1973. After consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effect of an undesirable discharge and that he might be deprived of many or all Army and Veterans Administration benefits.  The applicant’s counsel submitted a statement on the applicant’s behalf stating that his problems begun when he returned from Vietnam.  His father became seriously ill and could not continue to run the family business.  The applicant reported that he had applied for a hardship discharge, but his request was denied because his brother had already been given a hardship discharge to run the family business.   When his brother abandoned the family, the applicant found it necessary to return home to help his father.

9.  On 21 August 1973, the appropriate authority approved the applicant’s request and directed that he be discharged with an Undesirable Discharge Certificate.

10.  On 14 September 1973, the applicant was discharged in pay grade E-1.  He had 106 days of time lost.

11.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation, an Undesirable Discharge Certificate was issued.

12.  Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  Court-martial charges were properly preferred against the applicant.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulation.

3.  The applicant had a history of disciplinary problems, which wasn’t limited to AWOL.  If the applicant had, in fact, submitted a request for a hardship discharge (there is no record of any such request), it would be understandable if his command required extensive documentation to substantiate his hardship.  Since there is no evidence of the applicant’s father suffering multiple heat attacks or being physical disabled, it would appear that the applicant’s family situation is not mitigating in this case.

4.  The quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his discharge under other than honorable conditions to honorable.

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.

7.  Records show the applicant should have discovered the error or injustice now under consideration on 14 September 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 13 September 1976.  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

__kan ___  ___lmb__  ___jtm __  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.  

		_________Kathleen A. Newman_________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088713	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040108	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730914	
DISCHARGE AUTHORITY	AR635-200, CH 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.110.00		
2.		
3.		
4.		
5.		
6.