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ARMY | BCMR | CY2003 | 2003091812C070212
Original file (2003091812C070212.rtf) Auto-classification: Denied




RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: JANUARY 15, 2004
         DOCKET NUMBER: AR2003091812


         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. Deyon D. Battle Analyst


The following members, a quorum, were present:

Ms. Margaret K. Patterson Chairperson
Mr. William D. Powers Member
Mr. Allen L. Raub 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).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his undesirable discharge be upgraded to an honorable or a general discharge.

2. The applicant states that the type of discharge that he received is too harsh considering his good time and the nature of his offenses.

3. The applicant provides no additional documentation in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1. Counsel requests that consideration be given to the applicant’s contention that the type of discharge that he received is too harsh for him to continue living with its consequences and considering the nature of his offenses.

2. Counsel rests its case on the evidence of record.


CONSIDERATION OF EVIDENCE :

1. The applicant is requesting correction of an injustice, which occurred on 16 August 1974. The application submitted in this case is dated 27 May 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. On 28 February 1972, he enlisted in the Army for 3 years in the pay grade of E-1. He successfully completed his training as a clerk typist. On 24 June 1972, he was promoted to the pay grade of E-2.

4. A review of the available records show that the applicant was absent without leave (AWOL) from 8 April until 9 April 1973. However, there is no evidence of record that shows the punishment imposed.

5. Nonjudicial punishment (NJP) was imposed against the applicant on 20 September 1973, for being AWOL from 14 May 1973 until 17 July 1973. His punishment consisted of restriction and extra duty.

6. On 18 January 1974, NJP was imposed against the applicant for failure to go to his appointed place of duty. His punishment consisted of restriction and extra duty.

7. On 29 January 1974, NJP was imposed against him for being AWOL from 22 December 1973 until 31 December 1973 and from 4 January 1974 until 13 January 1974. His punishment consisted of confinement for 30 days and a reduction in pay grade.

8. The facts and circumstances pertaining to the applicant's discharge are not on file. The Report of Separation, DD Form 214, indicates that the applicant was discharged on 16 August 1974, under the provisions of Army Regulation
635-200, chapter 13, for unfitness. He had completed 2 years, 2 months and 19 days of total active service and he had approximately 92 days of lost time due to AWOL and confinement. He was furnished an Undesirable Discharge Certificate.

9. A review of the available records fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unfitness. Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense. An undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS :

1. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

2. The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

3. The contentions of the application and his counsel have been noted. However, he had NJP imposed against him on three separate occasions for being AWOL and for failure to go to his appointed place of duty. Considering his numerous acts of indiscipline, it does not appear that the type of discharge that he received was too harsh.

4. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

5. Records show the applicant should have discovered the error or injustice now under consideration on 16 August 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 15 August 1977. 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

alr _____ wdp _____ mkp _____ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.




                  ___Margaret K. Patterson___
                  CHAIRPERSON




INDEX

CASE ID AR2003091812
SUFFIX
RECON
DATE BOARDED 20040115
TYPE OF DISCHARGE UD
DATE OF DISCHARGE YYYYMMDD
DISCHARGE AUTHORITY AR 635-200
DISCHARGE REASON 583
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 592 144.5100.0000/FREQUENT INCIDENTS
2.
3.
4.
5.
6.


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