RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 September 2005
	DOCKET NUMBER:  AR20050001269 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. James C. Hise

Chairperson

Mr. Thomas E. O'Shaughnessy

Member

Mr. Patrick H. McGann Jr.

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 (UD) be upgraded.

2.  The applicant states that his UD should be upgraded.

3.  The applicant provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred on 5 March 1975, the date of his discharge.  The application submitted in this case is dated 4 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 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 he entered active duty (AD) on 14 August 1973, as a field artillery crewman (13B).  He was promoted to pay grade E-2 on 14 December 1973.  

4.  Between April and November 1974, the applicant accepted one summary and four nonjudicial punishments (NJP) for being absent from his appointed place of duty, for intent to deceive, for failure to go to his appointed place of duty, for being absent without leave (AWOL) from 8 to 15 July 1974, and for failure to report to his appointed place of duty.  His punishments consisted of forfeitures of pay, reduction to pay grade E-1, restrictions and extra duties.

5.  He was convicted by a special court-martial on 11 December 1974, of willfully disobeying a lawful command.  His sentence consisted of a forfeiture of pay and confinement at hard labor for 7 weeks.

6.  The applicant underwent a separation medical examination on 20 February 1975 and was found qualified for separation with a 111111 physical profile.

7.  Item 44 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record, Part II), shows that he was confined from 11 December 1974 to 19 January 1975. 

8.  On 25 February 1975, the applicant’s commander initiated action to separate him from the service under the provisions of AR 635-200, chapter 13-5, for misconduct.  He based his recommendation on the applicant’s frequent incidents of a discreditable nature with civil or military authorities.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf. 

9.  On 28 February 1975, the separation authority approved the recommendation for the applicant's discharge and directed that he be furnished an UD.  The applicant was discharged on 5 March 1975.  He had a total of 1 year, 5 months, and 13 days of creditable service and 39 days of lost time due to AWOL and confinement. 

10.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 8 November 1979.  The ADRB determined that his discharge was proper and equitable and denied his request on 7 December 1981. 

11.  Army Regulation 635-200 sets forth the policy and prescribes the procedure for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation to separation for unfitness and unsuitability.  At that time, paragraph 13-5a(1) provided for the separation of individuals for unfitness 
(frequent incidents of a discreditable nature with civil or military authorities).
When separation for unfitness was warranted an undesirable discharge was issued by the separation authority.

12.  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.

13.  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.
14.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that
filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s discharge proceedings appear to have been conducted in accordance with law and regulations applicable at the time of his separation.

2.  The type of separation directed and the reasons for that separation were appropriate considering all of the facts of the case. 

3.  The applicant has provided no evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 7 December 1981.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 6 December 1984.  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 FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___jch___  ___teo __  ____phm  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 C. Hise__________
          CHAIRPERSON




INDEX

CASE ID
AR20050001269
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20050920
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19750305
DISCHARGE AUTHORITY
AR 635-200, chapter 13-5a(1)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.