MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 14 February 2002
         DOCKET NUMBER: AR2001064032


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Barbara J. Ellis		Member
Mr. John E. Denning		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his discharge be upgraded to honorable and his rank restored. He states that he was harassed by his commander because he wanted to marry his German girlfriend and his commander thought she was too young (she was 16). His commander had it in for him shortly after he stopped the commander’s car from almost hitting him in a pedestrian crosswalk. In May 1966, he handed his military identification card to his first sergeant and told him he would not see him again. Four months later he and his girlfriend married and they have three daughters. In 1991, a Marine stationed in the Persian Gulf deserted so he could marry his 16-year old girlfriend from Bahrain and he was honorably discharged. The Army also lied in completing items 26b of his first Report of Transfer of Discharge, DD Form 214, and in item 23b of his second DD Form 214. He had told the Army he was a shipfitter in civilian life, not a box maker.

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD: The applicant's military records show:

He was a German citizen when he initially enlisted in the Regular Army on 11 March 1963. He was honorably discharged on 10 March 1964 for the purpose of immediately reenlisting on 11 March 1964. Item 26b of his DD Form 214 for this period indicates “unk” for a civilian occupation related to his military occupational specialty (MOS) of Supply Handler.

Between 2 October 1963 and 6 July 1965, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions for unlawfully striking the battalion staff duty noncommissioned officer (NCO) and the battalion staff duty NCO’s assistant, for being absent without proper authority, and for being off the kaserne without a pass and knowing that his pass had been removed, respectively.

The applicant had been assigned to Germany, contrary to regulations and the Status of Forces Agreement, in April 1964. (The German constitution prohibits the “extradition” of a German citizen and the turning over of a person to a foreign jurisdiction is considered extradition. In the processing of the applicant’s separation packet, it was explained to his command that this was the primary consideration in prohibiting German nationals from being assigned to Germany.)

On 12 May 1966, he was convicted by a summary court-martial of being absent without leave (AWOL) from 20 April – 2 May 1966 and from 2 – 5 May 1966. He was sentenced to be reduced to pay grade E-1, to forfeit $83.00 pay and to perform hard labor without confinement for 45 days.

On 14 May 1966, the applicant departed AWOL.

On 18 July 1966, action was initiated to separate the applicant under the provisions of Army Regulation 635-205, Secretarial Authority.

On 15 August 1966, The Adjutant General informed the U. S. Army Europe that the separation procedures prescribed in Army Regulation 635-206 were applicable and returned the case for correction. On 1 September 1966, the applicant was notified by mail, addressed apparently to his father in Bremerhaven, Germany, of the contemplated action to discharge him based on substantial evidence to support a determination of desertion resulting from his continued absence without leave since 14 May 1966. He was advised of his rights and informed that an individual discharged under these circumstances was normally issued an undesirable discharge. He apparently did not respond to the notification.

There is no evidence of record to explain the time delay between the initiation of the separation action and the approval of the action.

The applicant returned to military control on 22 August 1967.

On 23 August 1967, the applicant completed a mental status evaluation and he was found to be oriented, rational and coherent. He gave no indication of abnormal thinking or behavior suggesting psychosis. He was psychiatrically cleared for appropriate administrative action.

On 18 September 1967, the appropriate authority approved the action and directed the applicant be issued an Undesirable Discharge Certificate.

On 18 September 1967, the applicant was discharged, with an undesirable discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-206. He had completed a total of 3 years, 2 months, and 15 days of creditable active service and had 470 days of lost time.
The applicant’s DD Form 214 for the period ending 18 September 1967, item 26a erroneously shows he departed AWOL on 14 June 1966. Item 30 correctly shows he was dropped form the rolls as a deserter on this date (after departing AWOL on 14 May 1966). Item 23b indicates the related civilian occupation for his MOS of General Warehouseman was “box maker.”

Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). That regulation provided, in pertinent part, for the discharge of enlisted personnel for misconduct when it was determined there was substantial evidence to support a determination of desertion or absence without leave; retention was not considered desirable or in the best interest of the government; and trial by court-martial on a charge of desertion or AWOL was waived or deemed inadvisable by the general court-martial convening authority.

Items 26b and 23b of the applicant’s respective DD Forms 214 indicated the civilian occupation, as shown in the Government’s Dictionary of Occupational Titles (DOT), most closely related to a soldier’s MOS. It had no relation to the soldier’s actual civilian occupation. If a reasonably close DOT occupation and code could not be found, “none” or “unknown” was entered.

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.

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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 18 September 1967, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 18 September 1970.

The application is dated 4 October 2001 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__jns___ __bje___ __jed___ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001064032
SUFFIX
RECON
DATE BOARDED	20020214
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19670918
DISCHARGE AUTHORITY	AR 635-206
DISCHARGE REASON	A63.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.