RECORD OF PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:              December 2, 2003                
	DOCKET NUMBER:      AR2003089892

	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	
	Mr. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Patrick H. McGann		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 a more favorable discharge that will afford him benefits.

2.  The applicant states that he was not told that he would be ineligible for veterans benefits.  He further states that he served a full tour in Vietnam and received the Army Commendation Medal.  He also states that opportunities for employment have been adversely affected by his discharge.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 14 February 1971.  The application submitted in this case is dated 14 April 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 in Brooklyn, New York, on 14 June 1967, for a period of 3 years and training as a medical corpsman.  He completed his basic combat training at Fort Gordon, Georgia, and was transferred to Fort Sam Houston, Texas, to undergo his advanced individual training.  

4.  On 27 September 1967, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and restriction.

5.  He completed his training and was transferred to Vietnam on 11 December 1967.  He was advanced to the pay grade of E-3 on 15 December 1967.

6.  On 25 March 1968, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer.  His punishment consisted of a forfeiture of pay.

7.  On 18 June 1968, NJP was imposed against him for the wrongful possession of marijuana.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and extra duty.

8.  On 12 August 1968, he was convicted by a special court-martial of willfully disobeying a lawful order from a superior noncommissioned officer.  He was sentenced to confinement at hard labor for 3 months (suspended for 3 months) and a forfeiture of pay.

9.  He completed his tour in Vietnam on 10 December 1968 and was transferred to Edgewood Arsenal, Maryland, where he remained until he was transferred to Fort Lee, Virginia, on 12 February 1969.

10.  On 20 October 1969, NJP was imposed against him for violating a lawful regulation (failure to stop at a red light) and being antagonistic towards Military Police and improper dress.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

11.  On 17 November 1969, the applicant went absent without leave (AWOL) and the commander initiated a commander's inquiry regarding his absence.  In doing so, the commander notified the applicant's parents of his absence and his mother called the commander and informed him that he would return; however, he failed to do so.  Federal Bureau of Investigation (FBI) officials notified the commander that the applicant had applied for Landed Immigrant Status in Canada and was attending the University of Montreal.  The Commander indicated that the applicant was under special court-martial charges when he departed the unit, which could have prompted his departure.

12.  The applicant remained absent in a deserter status until he surrendered to military authorities in Hawaii on 14 December 1970, where charges were preferred against him for the AWOL offense.

13.  On 15 January 1971, 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, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement in his own behalf and indicated that he kept a copy of his request and all associated documents.

14.  The appropriate authority (a major general) approved his request on 4 February 1971 and directed that he be issued an Undesirable Discharge Certificate.

15.  Accordingly, he was transferred to Oakland Army Base, California, where he was discharged under other than honorable conditions on 14 February 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 3 months and 16 days of total active service and had 426 days of lost time due to AWOL.  He was separated on temporary records and his affidavit and his DD Form 214 indicates that his awards included the Army Commendation Medal and the National Defense Service Medal. 

16.  There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have 
been preferred, submit a voluntary request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions was at that time and is still normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the length of his absence and his record of misconduct.

4.  The applicant’s contentions have been considered by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service.  While the applicant did serve a tour in Vietnam, his disciplinary record as well as the lack of mitigating circumstances to explain his misconduct clearly warranted the discharge he received.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.  Records show the applicant should have discovered the error or injustice now under consideration on 14 February 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 February 1974. 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

_PM___  __MM__  __FE__  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	AR2003089892	
SUFFIX		
RECON		
DATE BOARDED	2003/12/02	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1971/02/14	
DISCHARGE AUTHORITY	AR635-200/CH10 . . . . .  	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.144.7000	689/A70.00	
2.		
3.		
4.		
5.		
6.