RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2005 DOCKET NUMBER: AR20050000987 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. Wanda L. Waller Analyst The following members, a quorum, were present: Mr. Paul Smith Chairperson Ms. Yolanda Maldonado Member Mr. Leonard Hassell 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 honorable. 2. The applicant states he does not wish to gain any military benefits, he is sorry for his actions when he was younger, and he is retired from a company he was employed by for 15 years. 3. The applicant provides no evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 3 November 1967. The application submitted in this case is dated 28 December 2004. 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 was born on 18 June 1944. He was ordered to active duty on 10 August 1962 and was released from active duty on 9 February 1963. He enlisted on 30 September 1963 for a period of 3 years. He was awarded military occupational specialty 36A (wireman). 4. On 7 November 1964, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 2 November 1964 to 3 November 1964. His punishment consisted of a forfeiture of pay, restriction, and extra duty. 5. On 11 February 1966, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 23 September 1965 to 27 December 1965. He was sentenced to be confined at hard labor for 3 months and to forfeit $90 pay per month for 6 months. On 16 February 1966, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 3 months and forfeiture of $83 per month for 3 months. On 14 April 1966, the unexecuted portions of the applicant’s sentence were suspended until 25 April 1966. 6. On 29 June 1966, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 24 April 1966 to 30 May 1966. He was sentenced to be restricted to the limits of the company area for 2 months. On 6 July 1966, the convening authority approved the sentence. 7. On 9 December 1966, nonjudicial punishment was imposed against the applicant for failure to repair and using disrespectful language toward his superior noncommissioned officer. His punishment consisted of restriction and extra duty. 8. On 3 March 1967, nonjudicial punishment was imposed against the applicant for missing formation and failing to obey a lawful order. His punishment consisted of a reduction to E-2 (suspended) and extra duty. On 10 March 1967, the suspension of the punishment of reduction to E-2 was vacated. 9. On 14 June 1967, nonjudicial punishment was imposed against the applicant for being AWOL (9 hours). His punishment consisted of a forfeiture of pay. 10. On 19 July 1967, nonjudicial punishment was imposed against the applicant for two specifications of being AWOL (3 July 1967 to 6 July 1967 and 13 July 1967 to 15 July 1967). His punishment consisted of a forfeiture of pay, restriction, and extra duty. 11. The applicant’s DD Form 214 (Report of Transfer or Discharge) for the period ending 3 November 1967 shows he went AWOL on 7 August 1967 and returned to military control on 20 September 1967. The charge sheet is not available. 12. On 25 September 1967, 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. He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected not to submit a statement in his own behalf. 13. On 23 October 1967, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 14. Accordingly, the applicant was discharged with an undesirable discharge on 3 November 1967 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 3 years, 4 months and 6 days of total active service with 457 days of lost time due to AWOL and confinement. 15. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 16. 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. At the time, an undesirable discharge was normally considered appropriate. 17. 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. Whenever there is doubt, it is to be resolved in favor of the individual. 18. 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. Age is not a sufficiently mitigating factor. The applicant completed basic combat training and advanced individual training and was 20 years old when his first nonjudicial punishment was imposed against him. 2. Good post service achievements alone are not a basis for upgrading a discharge. 3. The applicant’s record of service included five nonjudicial punishments, two special court-martial convictions, and 457 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or honorable discharge. 4. 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. He had an opportunity to submit a statement in which he could have voiced his concerns or reasons for going AWOL and he failed to do so. 5. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 6. Records show the applicant should have discovered the alleged injustice now under consideration on 3 November 1967; therefore, the time for the applicant to file a request for correction of any injustice expired on 2 November 1970. 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 PS_____ YM______ LH______ 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. ___Paul Smith____________ CHAIRPERSON INDEX CASE ID AR20050000987 SUFFIX RECON DATE BOARDED 20050830 TYPE OF DISCHARGE UD DATE OF DISCHARGE 19671103 DISCHARGE AUTHORITY AR 635-200 Chapter 10 DISCHARGE REASON For the good of the service BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 144.0000 2. 3. 4. 5. 6.