RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 February 2007 DOCKET NUMBER: AR20060009693 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. Michael J. Fowler Analyst The following members, a quorum, were present: Mr. Hubert O. Fry Jr. Chairperson Mr. William F. Crain Member Mr. Dale E. DeBruler 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 that his undesirable discharge be upgraded to a general under honorable conditions or honorable discharge. 2. The applicant states, in effect, at the time of his service he was young and immature. He had a wife and young son and had no clue of all the responsibilities that lay ahead. He further states that his two absences without leaves (AWOLs) were minor offenses. While on leave he was a victim of a crime that caused him the loss of his left eye due to a gunshot wound. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the ending period 16 April 1970. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 16 April 1970. The application submitted in this case is dated 29 June 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. On 21 February 1950, the applicant was born. He enlisted in the Regular Army on 6 January 1969 and did not successfully complete basic combat training. 4. On 6 June 1969, the applicant was convicted, pursuant to his plea, by a special court-martial for being AWOL for the period 2 April 1969 through 27 May 1969. His sentence consisted of hard labor without confinement for three months. 5. A DD Form 458 (Charge Sheet), dated 27 March 1970, shows charges were preferred against the applicant for being AWOL for the period 2 July 1969 through 19 March 1970. 6. On 30 March 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations). The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. He also acknowledged that he may expect to encounter substantial prejudice in civilian life. The applicant did not submit a statement in his behalf. 7. On 16 April 1970, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200. He directed that the applicant be issued an Undesirable Discharge Certificate. On 16 April 1970, the applicant was discharged with a characterization of service of under other than honorable conditions. The applicant had completed 6 months and 16 days of creditable active service that period with 265 lost days due to AWOL. 8. 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 9. Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 10. Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he was young and immature at the time of his offenses. Records show that the applicant was 18 years, 10 months, and 15 days of age at the time his active service began and 20 years, 1 month, and 25 days of age at the time of his discharge. After his special court-martial, he knew there would be consequences for his actions. Therefore, his contention that he was young at the time of his offenses does not mitigate his indiscipline. 2. Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 3. The applicant's records show that he was convicted by one special court-martial and had two instances of AWOL during his enlistment. The applicant had completed 6 months and 16 days of creditable active service with 265 days of lost time (not minor offenses). Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge. 4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 April 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 15 April 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __HOF __ __WFC _ __DED _ 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. ____ Mr. Hubert O. Fry Jr.__ CHAIRPERSON INDEX CASE ID AR20060009693 SUFFIX RECON DATE BOARDED 13 FEBRUARY 2007 TYPE OF DISCHARGE UD DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY MR. CHUN ISSUES 1. 144.0134.0000 2. 3. 4. 5. 6.