RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            16 December 2003                   
	DOCKET NUMBER:    AR2003091341

	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. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. John N. Slone		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 general discharge.

2.  The applicant states that his discharge was based on one isolated incident, that he has lived and become involved in a sober community for the past 4 years and desires to have his discharge upgraded so that he may return to the civilian workforce and apply for some type of trade or business school to obtain a marketable trade.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 25 May 1973.  The application submitted in this case is dated 20 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 was inducted in Los Angeles, California, on 18 March 1969.  He underwent his basic combat training (BCT) at Fort Ord, California.  He completed his BCT and was transferred to Fort Leonard Wood, Missouri, on 27 May 1969, to undergo his advanced individual training (AIT) as a pioneer. 

4.  He went absent without leave (AWOL) on 1 June 1969 and remained absent until he was returned to military control by civilian authorities at Fort Ord on 8 October 1970.  He again departed AWOL on 27 October and remained absent until he was again returned to military control by civil authorities on 3 November 1970.

5.  The applicant again went AWOL on 4 November 1970 and remained absent until 16 November 1970.  He departed AWOL on 18 December 1970 and was returned to military control on 1 January 1971.  He again departed AWOL on 2 January 1971 and remained absent in a deserter status until he was returned to military control at Fort Leonard Wood on 17 April 1973, where charges were preferred against him for the AWOL offenses.

6.  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.  

7.  The appropriate authority (a major general) approved his request on 22 May 1973 and directed that he be issued an Undesirable Discharge Certificate.

8.  Accordingly, he was discharged under other than honorable conditions on 28 February 1974, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 6 months of total active service and had 1348 days of lost time due to AWOL. 

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

10.  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 absences during a short period of time.

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.  

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 25 May 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 24 May 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

_SAC___  ___JS__  ___SLP__  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.  

		Samuel A. Crumpler
		   CHAIRPERSON

INDEX

CASE ID	AR2003091341	
SUFFIX		
RECON		
DATE BOARDED	2003/12/16	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	1973/05/25	
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.