RECORD OF PROCEEDINGS

	IN THE CASE OF:	  

	BOARD DATE:	   17 August 2006
	DOCKET NUMBER:  AR20060001418 

	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:

	Mr. Richard T. Dunbar		Chairperson	
	Mr. Dean A. Camarella		Member	
	Ms. Rea M. Nuppenau		Member	

	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, that his undesirable discharge (UD) be upgraded.  

2.  The applicant states, in effect, the wrongs done to him should be changed.  He claims the reason for his going absent without leave (AWOL) was his father's health.  He states that if he had the chance to redo the mistake he made, he would do things differently.  

3.  The applicant provides no additional documentary evidence in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 14 January 1972, the date of his separation from active duty.  The application submitted in this case is dated 23 January 2006.  

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 limitations 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 was inducted into the Army and entered active duty on 20 October 1969.  He was trained in, awarded, and served in military occupational specialty (MOS) 64B (Heavy Vehicle Driver), and the highest rank he attained while serving on active duty was private/E-2 (PV2).  

4.  The applicant's record documents no combat service, acts of valor, significant achievement, or service warranting special recognition.  His disciplinary history includes his accruing 406 days of time lost due to AWOL.  

5.  On 4 November 1971, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 10 October 1970 through on or about 27 October 1971.

6.  On 17 November 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UD and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  

7.  In his request for discharge, the applicant acknowledged he understood that if his discharge request was approved, he could 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.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UD.  

8.  On 29 December 1971, the separation authority approved the applicant's request for discharge, and he directed the applicant be discharged under the provisions of chapter 10, Army Regulation 635-200, and that he receive an UD.  On 14 January 1972, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 1 month and 14 days of creditable active military service, and that he accrued a total of 
406 days of time lost due to AWOL.  

9.  On 23 April 1984, the Army Discharge Review Board (ADRB), after carefully considering the applicant's overall record of service, and the issues he raised, denied the applicant's petition to upgrade his discharge.

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 UD.

11.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was unjust because he only went AWOL based on his father's poor health was carefully considered.  However, this factor, while unfortunate, is not sufficiently mitigating to warrant granting the requested relief.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of undistinguished service.  

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.  Records show the applicant exhausted his administrative remedies when his case was last reviewed by the ADRB on 23 April 1984.  As a result, the time for him to file request for correction of any error or injustice to this Board expired on 22 April 1987.  He failed to 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___RTD _  __DAC__  __RMN__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

_____Richard T. Dunbar___
          CHAIRPERSON

INDEX

CASE ID	AR20060001418	
SUFFIX		
RECON		
DATE BOARDED	2006/08/17	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/01/14	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	In Lieu of C-M	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.