RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 February 2007
	DOCKET NUMBER:  AR20060006485 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Barbara Ellis

Chairperson

Ms. Linda Simmons

Member

Mr. Michael Flynn

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 general discharge under the provisions of the Special Discharge Review Program (SDRP) be upgraded to honorable.

2.  The applicant states, in effect, that he would like his discharge upgraded because of his service connected condition which is evaluated at 100 percent for paranoid schizophrenia by the Department of Veterans Affairs (DVA). 

3.  The applicant provides a DVA Rating Decision, dated 5 January 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 February 1965.  The application submitted in this case is dated 3 May 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 applicant enlisted on 14 May 1962 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 760.00 (supply clerk). 

4.  On 30 December 1963, nonjudicial punishment was imposed against the applicant for being absent without leave from 26 December 1963 to 
27 December 1963.  His punishment consisted of a forfeiture and reduction to 
E-2.

5.  On 30 March 1964, in accordance with his plea, the applicant was convicted by a summary court-martial of attempted larceny (five gallons of gasoline).  He was sentenced to perform hard labor without confinement for 45 days, to forfeit $60 per month for 1 month, and to be reduced to E-1.  On 30 March 1964, the convening authority approved only so much of the sentence as provided for a reduction to E-1, a forfeiture of $60 per month for 1 month, and restriction for 
30 days.

6.  On 30 July 1964, in accordance with his pleas, the applicant was convicted by a special court-martial of two specifications of breaking restriction and two specifications of being AWOL (from 27 May 1964 to 30 May 1964 and from 
1 June 1964 to 3 June 1964).  He was sentenced to be confined at hard labor for 1 month and to be reduced to E-1.  On 1 August 1964, the convening authority approved only so much of the sentence as provided for reduction to E-1 and restriction for 1 month.

7.  On 11 December 1964, in accordance with his pleas, the applicant was convicted by a special court-martial of two specifications of being AWOL (from 
2 September 1964 to 7 September 1964 and from 18 September 1964 to 
23 October 1964).  He was sentenced to be confined at hard labor for 6 months and to forfeit $75 per months for 6 months.  On 16 December 1964, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 4 months and forfeiture of $75 per months for 4 months.

8.  On 15 January 1965, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  

9.  On 15 January 1965, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf. 

10.  On 3 February 1965, the separation authority approved the recommendation for separation and directed that he be furnished an undesirable discharge.  

11.  On 10 February 1965, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 2 years, 3 months, and 21 days of creditable service with 159 days of lost time due to AWOL and confinement.

12.  In support of his claim, the applicant provides a DVA Rating decision which states that his previous denial of service connection for cervical vertebra fracture with arthritis as secondary to paranoid schizophrenia was confirmed and continued.

13.  On 22 March 1966, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge.  On 21 June 1977, the applicant's records were reviewed under the provisions of the SDRP wherein it was determined that he had met the primary criteria for upgrade having had a record of satisfactory active military service for 24 months prior to discharge.  A general discharge was directed following review under the provisions of Public Law 95-126.  On 6 April 1978, the ADRB reviewed the applicant’s case under the provisions of Public Law 95-125 and affirmed the SDRP discharge upgrade (a general discharge). 

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) 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.

15.  Army Regulation 635-200 is the current regulation governing the separation of enlisted personnel.  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.  

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 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 DVA does not fall under the purview of this Board or the Department of Defense.  The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit.

2.  The applicant’s administrative separation in 1965 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s undesirable discharge was upgraded to general under the SDRP on 21 June 1977.  On 6 April 1978, the general discharge was affirmed as required by Public Law 95-126.  

4.  The applicant’s record of service included one nonjudicial punishment, one summary court-martial, two special court-martial convictions, and 159 days of lost time.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 8 April 1978.  As a result, the time for the applicant to file a request for correction of any injustice to this Board expired on 7 April 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

BE_____  _LS_____  _MF_____  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.


___Barbara Ellis_____
          CHAIRPERSON




INDEX

CASE ID
AR20060006485
SUFFIX

RECON

DATE BOARDED
20070201
TYPE OF DISCHARGE
GD (SDRP)
DATE OF DISCHARGE
19770621
DISCHARGE AUTHORITY
AR 635-200  
DISCHARGE REASON
635-212
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.