RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           5 February 2004    
	DOCKET NUMBER:   AR2003088920

	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. 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 that his undesirable discharge be upgraded to honorable.

2.  The applicant states that he served almost two years and only had two isolated incidents, one fight and one period of being absent without leave (AWOL).  He contends that he went AWOL because his woman was pregnant at the time; however, he returned on his own.  He also contends that he is homeless and is seeking help from the Department of Veterans Affairs. 

3.  The applicant did not provide any evidence in support of his application. 

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
22 July 1976.  The application submitted in this case is dated 19 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 22 October 1974 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 51N (water supply specialist).   

4.  DA Form 4187 (Personnel Action), dated 6 May 1975, shows the applicant's duty status changed from present for duty to confined (military authority) effective 2 May 1975.  DA Form 4187, dated 11 July 1975, shows the applicant's duty status changed from confined (military authority) to present for duty effective 
13 May 1975.

5.  On 17 June 1975, contrary to his plea, the applicant was convicted by a special court-martial of assault (unlawfully strike a soldier in the face with his fist). He was sentenced to perform hard labor without confinement for 30 days, restriction for 30 days, to forfeit $100 per month for one month, and to be reduced to E-1.  On 10 July 1975, the convening authority approved the sentence.

6.  On 17 November 1975, nonjudical punishment was imposed against the applicant for being AWOL on 8 November 1975 to 8 November 1975 (9 1/2 hours).  His punishment consisted of a forfeiture of pay (suspended for 60 days), extra duty and restriction.  On 9 January 1976, the suspended portion of the sentence was vacated.

7.  On 25 February 1976, nonjudicial punishment was imposed against the applicant for being AWOL from 13 February 1976 to 23 February 1976.  His punishment consisted of extra duty and restriction.

8.  On 24 March 1976, nonjudicial punishment was imposed against the applicant for failure to repair.  His punishment consisted of a reduction to E-1 (suspended for 60 days) and a forfeiture of pay.

9.  The applicant went AWOL on 30 March 1976 and returned to military control on 5 April 1976.  Later, on 5 April 1976, he went AWOL again and returned to military control on 13 April 1976.  He went AWOL a third time on 15 April 1976 and returned to military control on 17 May 1976.  Charges were preferred against the applicant on 17 May 1976 and trial by special court-martial was recommended. 

10.  On 24 May 1976, 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.  He elected not to submit a statement in his own behalf.

11.  The intermediate commanders recommended that the applicant’s request for discharge be approved and that he be furnished an undesirable discharge.   

12.  On 28 May 1976, the separation authority approved the applicant’s request for discharge and directed that he be issued an undesirable discharge certificate.

13.  Accordingly, the applicant was discharged with an undesirable discharge on 
22 July 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 1 year, 6 months and 25 days of total active service and had 67 days of lost time due to confinement and AWOL.

14.  On 12 March 1979, the Army Discharge Review Board (ADRB) denied the applicant's request for a general discharge.  On 28 August 1981, the ADRB denied a second request for a general discharge.
15.  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. 

16.  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.

17.  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 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 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.   

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the sole purpose of obtaining medical benefits.  

2.  The evidence of record does not support the applicant's contention that he only had two isolated incidents of misconduct.  The applicant’s record of service included one special court-martial conviction, three nonjudicial punishments and 67 days of lost time.  As a result, his record of service 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 an honorable discharge.

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

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 28 August 1981.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 27 August 1984.  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:

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.

		__Fred N. Eichorn________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088920	
SUFFIX		
RECON		
DATE BOARDED	20030205	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19760722	
DISCHARGE AUTHORITY	AR 625-200 Chapter 10	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.