RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2007 DOCKET NUMBER: AR20070002456 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. Ms. Catherine C. Mitrano Director Mr. Mohammed R. Elhaj Analyst The following members, a quorum, were present: Mr. John T. Meixell Chairperson Mr. William F. Crain Member Mr. Dean A. Camarella 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 discharge be upgraded. 2. The applicant states that he is not requesting to change an error, but to upgrade his discharge. The applicant further states that he was told that after a certain amount of time, he could upgrade his discharge. 3. The applicant did not provide any additional documentation in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 25 May 1973, the date of his discharge from the Regular Army. The application submitted in this case is dated 10 February 2007. 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 he enlisted in the Regular Army on 6 July 1972 for two years and the highest rank he attained while serving on active duty was private/pay grade E-2. 4. The applicant's records do not show any significant acts of valor during his military service 5. The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions: on 21 August 1972, for being absent without leave (AWOL) during the period 19 August 1972 to 21 August 1972; on 16 October 1972, for being AWOL during the period 10 October 1972 to 16 October 1972; on 16 December 1972, for disorderly conduct; on 8 November 1973, for being AWOL during the period 5 November 1972 to 8 November 1972; and on 21 February 1973, for being AWOL during the period 15 February 1973 to 20 February 1973. 6. On 3 May 1973, charges were preferred against applicant for being AWOL from on or about 3 March 1973 to on or about 26 March 1973 and being AWOL from on or about 31 March 1973 to on or about 30 April 1973. 7. On 16 May 1973, the applicant consulted with 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him. 8. In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge. He further acknowledged he understood that if the discharge request was approved, 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. The applicant elected not to submit a statement on his own behalf 9. On 21 May 1973, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate. On 20 October 1975, the applicant was discharged accordingly. The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he completed a total of 8 months and 13 days of creditable active military with 67 days of lost time due to AWOL. This DD Form 214 was later amended to show that he had 72 days of lost time due to being AWOL. 10. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year stature of limitation. 11. Army Regulation 635-200 (Personnel Separations) 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, 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 12. Army Regulation 635-200, paragraph 3-7a, 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. 13. Army Regulation 635-200, paragraph 3-7b, 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 14. Records show the applicant should have discovered the alleged 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 1975. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his discharge should be upgraded and that he was told after a period of time he could upgrade his discharge. 2. The applicant's record shows that he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service. 3. The applicant's record of service shows that charges were preferred against the applicant for being AWOL and disorderly conduct. His records further show that he had 72 days of lost time due to being AWOL. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge. 4. The U.S. Army has never had a policy where a discharge was automatically upgraded. Every case is individually decided based upon its merits when an applicant requests a change in his or hers discharge. The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable. 5. Records show the applicant should have discovered the alleged 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. 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 _JTM___ __DAC__ __WFC___ 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. __John T. Meixell_____ CHAIRPERSON INDEX CASE ID AR SUFFIX RECON YYYYMMDD DATE BOARDED YYYYMMDD TYPE OF DISCHARGE (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) DATE OF DISCHARGE YYYYMMDD DISCHARGE AUTHORITY AR . . . . . DISCHARGE REASON BOARD DECISION (NC, GRANT , DENY, GRANT PLUS) REVIEW AUTHORITY ISSUES 1. 2. 3. 4. 5. 6.