RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 August 2005 DOCKET NUMBER: AR20050001009 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. James Anderholm Chairperson Mr. Richard Dunbar Member Ms. LaVerne Douglas 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 discharge. 2. The applicant states that he has turned his life around and the character of his discharge does not reflect this. 3. The applicant provides four character reference letters. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 24 February 1972. The application submitted in this case is dated 9 August 2004; however, the application was received in this office on 21 January 2005. 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. The applicant enlisted on 7 November 1969 for a period of 3 years. He was awarded military occupational specialty 76U (communications electronics repair parts specialist). 4. Records show the applicant was reduced in rank to E-3 by reason of misconduct (Article 15) effective 1 December 1971. No other information is available. 5. The facts and circumstances surrounding the applicant’s discharge are not contained in the available records. However, the applicant's DD Form 214 (Report of Transfer or Discharge) shows that he was discharged with an undesirable discharge on 24 February 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 2 years, 2 months and 7 days of creditable active service with 41 days of lost time due to AWOL and civil confinement. 6. 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. 7. The applicant provided character reference letters from a Team Leader at the Vet Center, his employer, a co-worker, and his twin brother. These letters indicate that the applicant is involved in community service, that his negative behavior was stimulated by war exposure, that he demonstrates a long commitment to his family, and that he is in need of medical services, housing and employment. They indicate that the applicant drove a taxi from 1980 to 2001, that he had excellent customer service skills and a positive attitude, that he was very dependable and was a responsible driver. His brother states that he is a reliable person and family man and that he is hard working and reliable. 8. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge might at any time after the charges had 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. 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. Whenever there is doubt, it is to be resolved in favor of the individual. 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. A discharge is not upgraded for the sole purpose of obtaining Department of Veterans Affairs benefits. 2. The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded. 3. In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's request. 4. Records show the applicant should have discovered the alleged injustice now under consideration on 24 February 1972; therefore, the time for the applicant to file a request for correction of any injustice expired on 23 February 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. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING JA______ RD_____ LD______ 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. ____James Anderholm___ CHAIRPERSON INDEX CASE ID AR20050001009 SUFFIX RECON DATE BOARDED 20050804 TYPE OF DISCHARGE UD DATE OF DISCHARGE 19720224 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.