RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           15 JANUARY 2004                   
	DOCKET NUMBER:   AR2003091659

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. William D. Powers		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.

2.  The applicant states, in a self-authored statement, that he was under a lot of pressure at home, that his wife was leaving his small son at home while she went out partying, and that he was fighting depression and mental problems.  He states that he went home on leave and got into a fight and “lost control.”  

3.  He indicated that the demands of military life were too much for him, and that he served for almost 2 years and tried hard to be a good soldier.  He states that his service should have been characterized as honorable because he could not help his mental state.  

4.  He states that he would be homeless now if it were not for a friend who was permitting him to stay in his camper.  He states he needs help with his daily living expenses.

5.  The applicant provides no evidence beyond his self-authored statement.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
16 January 1976.  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.  Records available to the Board indicate that the applicant entered active duty on 27 September 1974.  His enlistment records do not indicate that he was married or that he had any children.  He was 19 years old at the time of his enlistment, had 10 years of formal education, and all of his Army aptitude scores were over 100, including his GT (general technical) score which was 104.

4.  The applicant successfully completed basic combat training and in December 1974 was assigned to Fort Benning, Georgia, in accordance with his enlistment contract, for training as a mechanical maintenance helper.

5.  On 5 January 1975 the applicant departed AWOL (absent without leave).  He returned to military control on 20 January 1975 and was punished under Article 15 of the Uniform Code of Military Justice (UCMJ).  In spite of his UCMJ action, the applicant was advanced to pay grade E-2 effective 27 January 1975.  However, his date of rank was subsequently adjusted to 15 May 1975.

6.  The applicant departed AWOL for a second time on 7 July 1975.  He was dropped from the rolls of the Army in August 1975 and surrendered to military authorities on 12 January 1976.  He was subsequently convicted by a special court-martial and his sentence included confinement at hard labor for 100 days.

7.  It appears the applicant commenced his confinement on 8 December 1975 and on 12 January 1976 the unexecuted portion of his sentence to confinement was remitted.  The applicant’s records indicate that he was in confinement for a total of 35 days.

8.  Although it is unclear from available records what charges prompted the applicant to request discharge in lieu of trial by court-martial on 24 December 1975, his records indicate that the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, Chapter 10.  His request acknowledged he understood the nature and consequences of the undesirable discharge, which he might receive.  He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.  He did not submit any statements on his own behalf.

9.  In recommending approval of the applicant’s request for discharge, his commander noted that the applicant’s personal problems have interfered with his job performance and that in addition to his unreliable job performance, he was pending a Fraudulent Entry action for concealing arrests for larceny of a vehicle and violation of a dangerous drug act.

10.  There were no medical records available to the Board, or provided by the applicant.

11.  The applicant’s request to be discharge was approved and on 16 January 1976 the applicant was discharged under other than honorable conditions and was issued an undesirable discharge certificate.  At the time of the applicant’s separation he had 11 months and 20 days of creditable active Federal service and more than 140 days of lost time.

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 undesirable discharge.

13.  There is no indication that the applicant applied to the Army Discharge Review Board within the statue of limitations to have his discharge upgraded.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, nor has the applicant provided any, that he was suffering from any mental conditions, which prevented him from satisfactorily completing his military duties.

2.  Contrary to his contention, the applicant did not complete nearly 2 years of military service.  The evidence indicates that had less than a year of creditable active Federal service.

3.  The applicant’s current living situation may be unfortunate, but it does not serve as a basis for upgrading the character of his 1976 discharge solely for the purpose of obtaining associated veterans services.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

5.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

6.  Records show the applicant should have discovered the error or injustice now under consideration on 16 January 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 15 January 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

__MKP__  __ALR __  __WDP__  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.  

		__Margaret K. Patterson___
		        CHAIRPERSON

INDEX

CASE ID	AR2003091659	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040115	
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.	110.00	
2.		
3.		
4.		
5.		
6.