RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 March 2007 DOCKET NUMBER: AR20060009890 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. 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 be upgraded to a general discharge. 2. The applicant essentially states that he and his brother went into the Army on the buddy system with a guarantee of staying together for basic and advanced individual training, and their first duty station, but this did not happen. He also states, in effect, that no one would change the orders given out of basic training. 3. The applicant provides no additional evidence in support of this application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 15 June 1976, the date of his discharge from the Regular Army. The application submitted in this case is dated 3 July 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 military records show that he enlisted in the Regular Army on 1 May 1973, and that he enlisted for the United States Army continental United States (CONUS) Station of Choice Enlistment Option and the United States Army Cash Bonus Enlistment Option. There are no other enlistment options shown on his DD Form 4 (Enlistment Contract – Armed Forces of the United States). 4. On 5 August 1973, the applicant went absent without leave. He was subsequently dropped from the rolls of the Army and listed as a deserter. He remained in this status until he was apprehended by civil authorities in Texarkana, Arkansas on 10 May 1976. He was returned to military control on 14 May 1976. 5. On 18 May 1976, the applicant voluntarily requested discharge for the good of the Service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel). In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge. He also acknowledged that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person. He also understood that by submitting his request for discharge, he acknowledged that he was guilty of the charge(s) against him or (a) lesser included offense(s) therein contained which also authorize(s) the imposition of a bad conduct or dishonorable discharge. He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service. 6. Also in his request for discharge, the applicant acknowledged that prior to completing his request, he was afforded the opportunity to consult with appointed counsel, who had fully advised him of the nature of his rights under the UCMJ, the elements of the offense(s) with which he was charged, any relevant lesser included offense(s) thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appear to be available at that time; and the maximum permissible punishment if found guilty, and of the legal effect and significance of his suspended discharge. He also understood that although his legal counsel furnished him legal advice, the decision was his own. 7. The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He also acknowledged that he had been advised and understood the possible effects of an undesirable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law. He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. The applicant elected not to submit a statement on his own behalf. 8. On 8 June 1976, the proper approval authority approved the applicant’s discharge, and directed that he receive an Undesirable Discharge Certificate. On 15 June 1976, the applicant was discharged accordingly. The DD Form 214 (Report of Separation From Active Duty) that was issued at the time of his discharge shows that authority for his discharge was Chapter 10, Army Regulation 635-200. Item 9e (Character of Service) of this document has an entry of “Under Other Than Honorable Conditions.” 9. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 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. 11. Army Regulation 635-200 also provides, in pertinent part, 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. 12. Army Regulation 635-200 further provides, in pertinent part, 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 his undesirable discharge should be upgraded to a general discharge. 2. It is clear that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge. It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial. As the applicant did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case. As a result, the applicant's discharge accurately reflects his overall record of service. 3. The applicant failed to provide any evidence which shows that an error or injustice occurred. 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. This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to either a general discharge or an honorable discharge. 4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 June 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 June 1979. 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 __MP ___ ___LR _ ___RB___ 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. ____Margaret Patterson_____ CHAIRPERSON INDEX CASE ID AR20060009890 SUFFIX RECON YYYYMMDD DATE BOARDED 20070315 TYPE OF DISCHARGE UD DATE OF DISCHARGE 19760615 DISCHARGE AUTHORITY AR 635-200, CHAPTER 10 DISCHARGE REASON FOR THE GOOD OF THE SERVICE BOARD DECISION DENY REVIEW AUTHORITY AR 15-185 ISSUES 1. 144.7100.0000 2. 3. 4. 5. 6.