RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 29 August 2006
DOCKET NUMBER: AR20060000810
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. G. E. Vandenberg | |Analyst |
The following members, a quorum, were present:
| |Mr. Paul M. Smith | |Chairperson |
| |Ms. LaVerne M. Douglas | |Member |
| |Mr. Ronald D. Gant | |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
to honorable.
2. The applicant states he was told his discharge would be changed to
honorable.
3. The applicant provides copies of his DD Form 214 (Report of Transfer or
Discharge) and 16 other documents from his service personnel file.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice
which occurred on 13 March 1969. The application submitted in this case is
dated 4 October 2005 and received by the Board on 19 January 2006.
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 records show the applicant entered active duty on 11 January 1966,
completed training, and was awarded the military occupational specialty
(MOS) 94A (Cook).
4. The applicant received nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice for AWOL
(absence without leave) for the period 22 May 1966 to 29 May 1966.
5. On 15 September 1966 a special court-martial found the applicant guilty
of AWOL for the period 7 September 1966 to 9 September 1966 and for
breaking restriction on 13 September 1966.
6. The applicant served in Vietnam from 1 October 1966 through 7 September
1967.
7. On 17 January 1968 the applicant received NJP for being AWOL from
26 December 1967 to 15 January 1968.
8. On 27 February 1968 a summary court-martial found the applicant guilty
of being AWOL for the period 19 January 1968 to 7 February 1968.
9. A 4 February 1969 Report of Psychiatric Evaluation indicates the
applicant was afforded a psychiatric evaluation on that date. The
attending doctor indicates the applicant was seen in the stockade where he
was confined on his fifth AWOL. The history given indicates the applicant
had two NJPs and three previous court-martials and had civilian arrests for
forgery and breaking and entering. The diagnosis rendered was that the
applicant was suffering from a chronic character and behavioral disorder.
He was considered to be not amenable to hospitalization, treatment,
training, transfer, or reclassification.
10. The record does not contain any documentation related to the
applicant’s discharge processing.
11. On 13 March 1969 the applicant was discharged under the provisions of
Army Regulation 635-212 with a UD for unfitness.
12. His DD Form 214 indicates at:
a. item 22 (Statement of Service), he had 2 years, 2 months, and 13
days of creditable service; and
b. item 30 (Remarks), his periods of lost time were 22 through 28 May
1966, 7 and 8 September 1966, 26 December 1967 through 6 February 1968,
15 May 1968 through 10 January 1969 (289 days) with an additional 61 days
lost subsequent to his normal ETS (expiration of term of service) for the
period 11 January 1969 through 12 March 1969.
13. There is no indication the applicant applied to the Army Discharge
Review Board within its 15-year statute of limitations.
14. Army Regulation 635-212, in effect at the time, set forth the basic
authority for the elimination of enlisted personnel. Paragraph 6 of the
regulation provided, in pertinent part, that an individual was subject to
separation for unfitness because of frequent incidents of a discreditable
nature with civil or military authorities. When separation for unfitness
was warranted an undesirable discharge was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. There is not now nor has there ever been any provision for automatic
upgrading of discharges.
2. 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.
3. In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.
4. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 March 1969; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 12 March 1972. 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
__RDG___ __PMS__ __LMD__ 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.
Paul M. Smith_______
CHAIRPERSON
INDEX
|CASE ID |AR20060000810 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20060829 |
|TYPE OF DISCHARGE | UD, |
|DATE OF DISCHARGE |19690313 |
|DISCHARGE AUTHORITY |AR .635-212 . . . . |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. |144 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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