RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            08 JANUARY 2004                  
	DOCKET NUMBER:   AR2003090003

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. John T. Meixell		Member	
	Ms. Linda M. Barker		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 records be corrected by upgrading his discharge and by granting him 4 months of back pay. 

2.  The applicant states that he did not receive pay for the last four months he was on active duty, that after basic training he was told his finance records had been lost.  He received a partial pay of $150.00 but did not receive any additional pay from 1 November 1972, until he departed on 23 February 1973.  He feels that he went AWOL (absent without leave) because he had not received a pay check for 4 months.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 11 June 1973.  The application submitted in this case is dated 2 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 the Regular Army on 31 August 1972 for a period of 3 years.  

4.  On 10 May 1973, the applicant’s commander preferred court-martial charges against him for being AWOL from 23 February 1973 to 4 May 1973.

5.  On 10 May 1973, after consulting with legal 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 his request he acknowledged that he understood the possible effect of an undesirable discharge on many Army benefits, and that he may encounter substantial prejudice in civilian life as a result of such discharge.  The applicant submitted a statement with his request which stated that he hated the Army, that he already had a civilian job and the discharge would not affect him.  He further stated that if he was returned to duty he would go AWOL again, and that he understood what an undesirable discharge was and would accept one to get out of the Army.

6.  On 25 May 1973, the applicant’s commander recommended approval of his request with an undesirable discharge certificate.

7.  On 16 June 1973, the appropriate separation authority approved the applicant’s request, and directed his reduction to the lowest enlisted grade and the issuance of an undesirable discharge certificate.  

8.  On 11 June 1973, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  His DD Form 214 indicates he had 7 months and 1 day of creditable service, and 70 days of lost time.

9.  There are no finance documents in the applicant’s records concerning his pay or any problems he may have had with receiving his pay.

10.  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.  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 an undesirable discharge.

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.  The type of discharge directed and the reasons therefore were appropriate considering the facts of the case.

2.  There is no evidence of record nor did the applicant provide documentation to substantiate his claim that he did not receive pay for the four months prior to his going AWOL.

3.  Records show the applicant should have discovered the error or injustice now under consideration on 11 June 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 10 June 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 __  __JTM __  __LMB __  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	AR2003090003	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040108	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.