RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 November 2005
	DOCKET NUMBER:  AR20050001272 


	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

Mr. Eric S. Moore

Analyst

The following members, a quorum, were present:


Mr. Thomas A. Pagan

Chairperson

Mr. Eric N. Andersen

Member

Mr. Joe R. Schroeder

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 be upgraded to honorable. 

2.  The applicant states that he served his whole military time but his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) says otherwise.  Now he believes his DD Form 214 should be upgraded to honorable. 

3.  The applicant provides no documents in support of his case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 17 May 1967, the date of his separation from active duty.  The application submitted in this case is dated 16 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 records show that he enlisted in the Regular Army on 19 July 1965 for a term of 3 years.  He successfully completed basic training and advanced individual training and was awarded the military occupational specialty (MOS) 94B (Cook).  

4.  On 28 May 1966, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to be at his appointed place of duty.

5.  On 18 January 1966, the applicant was convicted by special court martial of being absent without leave (AWOL) 1 November 1965 to 23 December 1965.  The sentence was confinement at hard labor, suspended for 6 months, and forfeiture of $55.00 per month for 6 months.



6.  On 30 August 1966, the applicant was convicted by special court martial of being AWOL from 12 July 1966 to 14 July 1966 and 15 July 1966 -11 August 1966.  The sentence was confinement at hard labor for 6 months and forfeiture of $64.00 per month for 6 months.

7.  On 17 March 1967, the applicant was convicted by special court martial of being AWOL from 30 January 1967 to 20 February 1967.  The sentence was confinement at hard labor for 6 months and forfeiture of $60.00 per month for 6 months.

8.  Apparently the applicant was notified by his commander that he was required to appear before a board of officers to determine whether he should be discharged for unfitness under the provisions of Army Regulation 635-212 (Discharge-Unfitness and Unsuitability), paragraph 5b for unfitness for duty.

9.  On 11 April 1967, the applicant consulted with the Defense Counsel at Fort Knox, Kentucky.  The applicant was advised of his rights and the effect of a waiver of those rights.

10.  The applicant was also advised of the basis for his separation under the provisions of Army Regulation 635-212.  The applicant indicated that he was counseled by appropriate counsel, that he waived consideration of his case by a board of officers, that he did not provide statements on his own behalf, and that he waived representation by military counsel.

11.  The applicant also indicated he was aware that as a result of the issuance of an undesirable discharge he may be ineligible for any or all benefits as a veteran under both Federal and state laws and that he may expect to encounter substantial prejudice in civilian life based on an undesirable discharge.

12.  On 21 April 1967, the applicant underwent a mental evaluation by a military psychiatrist that determined he could distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.  

13.  On 4 May 1967, the unit commander recommended the applicant be separated for unfitness based on four periods of AWOL, two periods of confinement, dropped from the rolls twice, one Article 15, and three Special Courts-Martial under the provisions of Army Regulation 635-212.  


14.  On 10 May 1967, the appropriate authority approved the applicant's discharge for unfitness under the provisions of Army Regulation 635-212.  On 17 May 1967, he was discharged with an undesirable discharge and a characterization of service as under conditions other than honorable after completing 8 months and 25 days of creditable active service.  He had 294 days of lost time due to AWOL and confinement 

15.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 12 January 1978, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under conditions other than honorable.

16.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records (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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The evidence of record shows the applicant consulted with legal counsel, was properly advised of his rights concerning the separation action, and was afforded the opportunity to submit statements in his behalf.

3.  The applicant's records show that he was convicted by three special courts-martial, received one Article 15, and had four instances of AWOL.  The applicant had completed 8 months and 25 days of creditable active service with a total of 294 lost days due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge or general discharge.
4.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 12 January 1978.  As a result, the time for the applicant to file a request for correction or any error or injustice to this Board expired on 11 January 1981.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___jsr ___  __ena __  ___tap __  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.




_____Thomas A. Pagan______
          CHAIRPERSON




INDEX

CASE ID
AR20050001272
SUFFIX

RECON

DATE BOARDED
20051122 
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
17 May 1967
DISCHARGE AUTHORITY
AR 635-212. . . . .  
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr Chun
ISSUES         1.

2.

3.

4.

5.

6.