RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           3 February 2004                   
	DOCKET NUMBER:   AR2003088755

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Regan K. Smith		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 that his undesirable discharge be upgraded to honorable or general.

2.  The applicant states, in effect, that while serving in Detroit on riot control, he was shot at on many occasions.  He also states that he requested to go to Vietnam and did not get to go. 

3.  The applicant provides a letter of explanation and a copy of his DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
8 October 1969.  The application submitted in this case is dated 29 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.  The applicant enlisted on 3 October 1966 for a period of 3 years.  He was awarded military occupational specialty 64A (light vehicle driver).

4.  On 26 September 1967, in accordance with his plea, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 31 August 1967 to 10 September 1967.  He was sentenced to perform hard labor without confinement for 3 months, to forfeit $30 per month for 3 months, and to be reduced to E-1.  On 29 September 1967, the convening authority approved the sentence but suspended the forfeiture of pay for 3 months.  

5.  On 1 July 1968, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 20 May 1968 to 17 June 1968.  He was sentenced to forfeit $60 per month for 2 months and restriction.  On 1 July 1968, the convening authority approved the sentence.  

6.  On 23 October 1968, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 5 July 1968 to 24 September 

1968.  He was sentenced to be confined at hard labor for 5 months and to forfeit $73 per month for 5 months.  On 24 October 1968, the convening authority approved the sentence.  

7.  The applicant went AWOL on 28 February 1969 and returned to military control on 31 July 1969.  It appears he was placed in pretrial confinement upon his return to military control.  He went AWOL again on 25 August 1969 and returned to military control on 27 August 1969.  Charges were preferred against the applicant on 15 September 1969 for the AWOL charges.  In addition to the two AWOL charges, he was charged with violating minimum custody conditions while a prisoner on 25 August 1969. 

8.  On 26 September 1969, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of the Veterans Affairs and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  Additionally, he elected not to submit a statement in his own behalf.

9.  The intermediate commanders recommended that the applicant's request for discharge be approved and that he be furnished an Undesirable Discharge Certificate.

10.  On 2 October 1969, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate. 

11.  Accordingly, the applicant was discharged with an undesirable discharge on 8 October 1969 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 1 year, 10 months and 18 days of total active service with 415 days of lost time due to AWOL and confinement.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

13.  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, an undesirable discharge was normally considered appropriate. 

14.  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 (emphasis added), 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.

15.  Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record of service included three special court-martial convictions and 415 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

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 regulations.  He had an opportunity to submit a statement in which he could have voiced his reasons for going AWOL and he failed to do so.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  Records show the applicant should have discovered the alleged injustice now under consideration on 8 October 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 7 October 1972.  

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

SAC____  CLG____  RKS_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

		__Samuel A. Crumpler__
		        CHAIRPERSON

INDEX

CASE ID	AR2003088755	
SUFFIX		
RECON		
DATE BOARDED	20040203	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19691008	
DISCHARGE AUTHORITY	AR 635-200 Chapter 10	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.