RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           27 January 2004                   
	DOCKET NUMBER:   AR2003089588

	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. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Yolanda Maldonado		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 (UD) be upgraded to a general discharge (GD) under honorable conditions.

2.  The applicant states that he was a great Soldier until he left his unit in an absent without leave (AWOL) status and he believes he would have received a GD, if his entire service record had been taken into consideration.  He also states that he has experienced two strokes and requests that this Board review his entire record and upgrade his discharge.  

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 25 February 1975.  The application submitted in this case is dated 20 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.  Prior to the period of service under review, the applicant served an honorable period of service in the Regular Army (RA) from 17 May 1973-24 February 1975. The applicant was issued a DD Form 214 (Report of Separation from Active Duty) at the completion of this period of service.

4.  On 25 February 1975, the applicant reenlisted in the RA for a period of 6 years, his previous military occupational specialty (MOS) 11B (Light Weapons Infantryman), and in pay grade E-4.  On 19 August 1975, the applicant was assigned to Germany with duties in his MOS.  

5.  The applicant left his unit in an AWOL status from 8 March-9 May 1976 until he returned to military control at the Personnel Control Facility, Fort Bragg, North Carolina.  Although no longer part of the record, court-martial charges were preferred against the applicant and he requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200, for the good of the service, in lieu of trial by court-martial.

6.  On 17 May 1976, the applicant underwent a medical examination that determined he was qualified for separation.

7.  On 24 June 1976, the applicant was placed in an excess leave status pending approval of his request for separation.

8.  As stated, the applicant’s record does not contain all the facts and circumstances surrounding the applicant’s discharge process.  However, his record contains a properly constituted DD Form 214, which shows he was discharged under the provisions of chapter 10, AR 635-200, for the good of the service, in lieu of trial by court-martial with a UD on 24 June 1976.  He had completed 1 year, 1 month and 28 days of creditable active military service on the enlistment under review and he had 63 days of lost time due to being AWOL. He had also completed 1 year, 9 months, and 8 days of creditable active military service on a prior period of enlistment.

9.  There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.  

10.  AR 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of a UD.

DISCUSSION AND CONCLUSIONS:

1.  The available records show the applicant was discharged under the provisions of chapter 10, AR 635-200, for the good of the service.  Some of the facts and circumstances surrounding the discharge process are missing.  However, his record shows the commission of at least one AWOL offense, which was punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  He would have then been required to consult with defense counsel and would have been required to sign a statement indicating that he had been informed that he could receive a UD and the ramifications of receiving such a discharge.  He would have voluntarily requested discharge to avoid trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ.  The Board presumes regularity in the discharge process.  The applicant has provided no information that would indicate the contrary.   

2.  The applicant’s conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service was not so meritorious as to warrant an upgrade of his discharge.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 24 June 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 23 June 1979.  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

__aao___  __le____  __ym____  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.  

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003089588	
SUFFIX		
RECON		
DATE BOARDED	20040127	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19760624	
DISCHARGE AUTHORITY	AR635-200, Chap 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.