RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 February 2004
         DOCKET NUMBER: AR2003089235


         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. Carolyn Wade		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Robert L. Duecaster		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his undesirable discharge be upgraded to honorable.

2. The applicant states that he was discharged under conditions other than honorable because he was a conscientious objector. He states that documentation was submitted from his pastor outlining the religious grounds on which his objections were based.

3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and makes note that his military personnel records are located at the National Personnel Records Center.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 19 August 1971. The application submitted in this case is dated 1 April 2003.

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's military records show he was inducted into the Army of the United States on 14 October 1970 for a period of 2 years.

4. The applicant satisfactorily completed basic combat training; however, he was detained as a security hold. He was initially sent on post details; however, due to his poor attitude and military bearing, he was deemed unacceptable for such assignments.

5. The applicant's military records show that when he finally received orders in February 1971 to attend advanced individual training at Fort Jackson, South Carolina, he submitted a conscientious objector application. It was determined that some of the supporting statements in his application contained inaccurate information. He subsequently withdrew a statement provided by his "wife" when it was proven that he and the woman had never been married.

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6. The applicant's military records show that, on 3 March 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for misconduct. His punishment consisted of forfeiture of $50.00 pay per month for 1 month.

7. On 9 April 1971, the applicant departed his unit in an absent without leave (AWOL) status and remained absent until 12 April 1971. He accepted NJP for this period of AWOL. His punishment consisted of forfeiture of $60.00 pay per month for 2 months (suspended for 60 days), 30 days' restriction and extra duty.

8. On 29 April 1971, a final security determination concluded that in the interest of national security the applicant was not eligible for a security clearance or assignment to sensitive areas.

9. On 13 May 1971, the applicant was convicted by summary court-martial of behaving disrespectfully toward his commanding officer. He was sentenced to confinement at hard labor for 25 days and forfeiture of $60.00 pay per month for 1 month. The sentence was approved on the same day. He was confined from 13 May to 2 June 1971.

10. The evidence of record shows the applicant was counseled on numerous occasions between 29 November 1970 and 23 July 1971. He was counseled on the consequences of being AWOL, being a security hold, his deteriorating attitude, assaulting another enlisted Soldier, being disrespectful to his superior commissioned officer, and various other acts of misconduct or administrative concern.

11. On 16 June 1971, the applicant underwent a mental status examination and was found to be mentally responsible, able to distinguish right from wrong, and adhere to the right. It was also noted that the applicant had the mental capacity to understand and participate in board proceedings.

12. On 21 July 1971, the unit commander notified the applicant of his intent to recommend him for discharge under the provisions of paragraph 6a, Army Regulation 635-212 and advised him of his rights to appear before a board of officers, to submit statements in his own behalf, to be represented by counsel, to waive his rights in writing, and to withdraw waiver of his rights anytime prior to the date the discharge authority directs or approves his discharge. The applicant acknowledged receipt on the same date.

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13. On 27 July 1971, the unit commander recommended that the applicant appear before a board of officers to determine whether he should be discharged under the provisions of Army Regulation 635-212 prior to his expiration term of service date. He indicated that he was recommending the applicant for discharge because of his frequent incidents of misconduct and administrative matters.

14. On 27 July 1971, the applicant acknowledged that he had been advised by counsel of his rights regarding his separation for unfitness under Army Regulation 635-212 and waived his rights to have his case heard by a board of officers. He indicated he made his choices freely and without threats, coercion, or promises of any kind.

15. On 13 August 1971, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-212 with an undesirable discharge. Accordingly, on 19 August 1971, the applicant was discharged from the Army after completing 9 months and 7 days of active military service and accruing 9 days of lost time [the applicant's time served in military confinement is not listed].

16. Army Regulation 635-212, then in effect, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate.

17. There is no evidence of record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

DISCUSSION AND CONCLUSIONS:

1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

2. The applicant's discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.

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3. The evidence of record does not reflect that the applicant was discharged because he applied for conscientious objector status. The evidence of record supports the fact that the applicant was recommended for discharge because of his frequent incidents of misconduct and deceitful behavior.

4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 August 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 18 August 1974. However, 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 file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__rjw___ __mhm___ __rld___ DENY APPLICATION

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.



                           Raymond J. Wagner
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003089235
SUFFIX
RECON
DATE BOARDED	20040219
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19710819
DISCHARGE AUTHORITY	AR 635-212. . . . .
DISCHARGE REASON	A64.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.
3.
4.
5.
6.