RECORD OF PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           13 January 2004                  
	DOCKET NUMBER:   AR2003091258

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Lana E. McGlynn		Chairperson	
	Mr. Roger W. Able		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, in effect, an upgrade of his undesirable discharge (UD).  

2.  The applicant states, in effect, that he was notified to report for induction on 
6 September 1967 by the Selective Service Board in Abington, Virginia.  He reported on that date and after being processed in Roanoke, Virginia, he was assigned to Fort Bragg, North Carolina for training.  He indicates that once at Fort Bragg, a drill sergeant divided up the reporting individuals into two lines, one for draftees and the other for enlistees, and he was instructed to enter the enlistee line.  He claims that at the time, he informed the drill sergeant that he was a draftee and that he did not enlist.  The drill sergeant indicated that he would report this to the personnel department.  

3.  The applicant further states that he completed his training at Fort Bragg and was assigned to Korea, where he served for just over 13 months and attained the grade of E-5.  He claims that upon the completion of his tour in Korea, he should have been discharged.  However, he was instead reassigned back to Fort Bragg. Once he arrived at Fort Bragg, he attempted to get discharged because he should have only been in the Army for two and not three years.  When nothing was done about his discharge, he went absent without leave (AWOL).  When he reported back to Fort Belvoir, Virginia, he was told that if he wanted out of the Army, he could sign a resignation and be discharged within 30 to 45 days and receive an honorable discharge.  

4.  The applicant provides the enclosed self-authored statement and a copy of his separation document (DD Form 214) in support of his application.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of a perceived error that occurred on 
8 October 1970.  The application submitted in this case is dated 12 May 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’s record shows that he entered the Army on 6 September 1967, at Roanoke, Virginia.  The enlistment contract (DD Form 4) on file confirms that he enlisted in the Regular Army for three years.  The applicant authenticated this contract and confirmed that he took the oath of enlistment with his signature in Item 41 (Oath of Enlistment) of the DD Form 4.    There is also a statement of acknowledgement of service obligation (IAA Form 629) on file, which the applicant authenticated with his signature.  In this document, he acknowledged that he voluntarily enlisted in the Regular Army on 6 September 1967, for a period of three years.  

4.  The applicant’s record shows that he was trained and served in military occupational specialty (MOS) 94B, and that the highest rank he attained while serving on active duty was specialist five (SP5).  It also confirms that during his active duty tenure, he completed an overseas tour in Korea and earned the Armed Forces Expeditionary Medal and Sharpshooter Qualification Badge with Rifle Bar.

5.  The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate dates for the offense(s) indicated:  22 November 1967, for being AWOL from on or about 14 to on or about 20 November 1967; 30 September 1969, for being AWOL from on or about 8 August to on or about 7 September 1969; and 11 March 1970, for being AWOL from on or about 10 October 1969 through on or about 2 February 1970.  

6.  On 22 March 1968, a special court-martial found the applicant guilty of being AWOL from on or about 3 February 1968 through on or about 7 March 1968.  The resultant sentence included confinement at hard labor for three months and a forfeiture of $68.00 per month for three months.  

7.  On 20 August 1970, a charge sheet (DD Form 458) was prepared on the applicant preferring a court-martial charge against him for being AWOL from on or about 3 July through on or about 17 August 1970.  

8.  On 28 August 1970, the applicant consulted legal counsel and was advised of
the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UD, and of the procedures and rights that were available to him.  After receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

9.  In his request for discharge, the applicant acknowledged that he understood he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

10.  The separation authority approved the applicant’s request for discharge and directed that he receive an UD and be reduced to the lowest enlisted grade.  On 8 October 1970, the applicant was discharged accordingly.  The DD Form 214 he was issued at this time confirms that he completed a total of 2 years, 4 months, and 6 days of creditable active military service, and that he had accrued a total of 267 days of time lost due to AWOL and confinement.  

11.  There is no evidence that the applicant submitted a request for an upgrade to his discharge to the Army Discharge Review Board (ADRB) within its 15 year statute of limitations.  

12.  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 UD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was a draftee and that he should have been honorably discharged after completing two years of service was carefully considered.  However, notwithstanding his statement to the contrary, the evidence of record includes an enlistment contract and service obligation statement, both signed by the applicant, which confirm that he enlisted in the 
Regular Army for a period of three years on 6 September 1967, and that he fully understood this at the time.  

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and after consulting legal counsel, he voluntarily requested discharge, in lieu of trial by court-martial.  Lacking evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  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.  

4.  The evidence of record show the applicant should have discovered the perceived error now under consideration on 8 October 1970, the date of his discharge.  Therefore, the time for the applicant to file a request for correction of any error or injustice related to this issue expired on 7 October 1973.  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___  __LEM__  __RA  __  _    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.  

		Lana E. McGlynn
		CHAIRPERSON

INDEX

CASE ID	AR2003091258	
SUFFIX		
RECON		
DATE BOARDED	2004/0113	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/10/08	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	In Lieu of Court Martial 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.