RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 February 2007
	DOCKET NUMBER:  AR20060008425 


	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. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Ms. Linda D. Simmons

Member

Mr. Michael J. 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 discharge be upgraded.

2.  The applicant states, in effect, that his service in the military was impaired due to marital difficulties and being too young.  He states there were personality conflicts between him and his commander.  He further states that since his separation he has established himself to become a successful businessman owning and operating his own business.  The applicant cites numerous accomplishments he has achieved since his discharge.

3.  The applicant provides:

     a.  a copy of his DD Form 214 (Report of Separation from Active Duty); and

     b.  a copy of four written statements in support of his case.  The statements provide a synopsis of the applicant's character and his achievements. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 26 November 1975, the date of his discharge from active duty.  The application submitted in this case is dated 7 June 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's military records show that he entered active duty on 30 August 1973.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 11B1O (Light Weapons Infantryman).  His highest rank held on active duty was private/pay grade E-2.

4.  On 5 September 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for stealing a pair of Canter swimming trunks, the property of the Main Post Exchange.  On 26 February 1975, he accepted NJP for being absent without leave (AWOL) during the period 16 February 1975 to 17 February 1975.

5.  On 25 September 1975, charges were preferred against the applicant for being AWOL for the periods 12 June 1975 to 2 July 1975 and 9 July 1975 to  
22 September 1975.

6.  On 26 September 1975, the applicant request discharge for the good of the service under the provisions of Chapter 10, Army Regulation 635-200 (Enlisted Personnel).

7.  The applicant acknowledged that he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of a under other than honorable discharge.

8.  On 24 October 1975, the separation authority approved the applicant's request for discharge and directed that the applicant receive an undesirable discharge certificate and that he be reduced to private/pay grade E-1.  On  
26 November 1975, the applicant was discharged.  The DD Form 214 he was issued shows he completed a total of 2 years and 1 day of creditable active military service.  The applicant had accrued a total of 96 days of time lost.

9.  The applicant applied to the Army Discharge Review Board (ADRB).  On  
25 July 1991, the ADRB found that the reason for his discharge was proper and equitable and denied relief.

10.  Army Regulation 635-200, in effect at the time, provided that a Soldier whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may request a discharge for the good of the service in lieu of a trial.  The regulation required that there was no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel (a member of the Judge Advocate Generals Corps or a person qualified under Article 27(b)(1) of the Uniform Code of Military Justice).  The Soldier was also required to sign the request indicating he understood that he may receive a discharge under other than honorable conditions and the adverse nature of such a discharge.  The regulation also required that the request be forwarded through channels to the general court-martial convening authority.  The regulation also provided that an undesirable discharge certificate will normally be furnished to an individual who is discharged for the good of the service and that the reason for discharge will be “FOR THE GOOD OF THE SERVICE."

11.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, 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.

12.  Army Regulation 635-200, paragraph 3-7b, 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.  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 requests that his discharged be upgraded.

2.  The applicant's repeated offenses and the seriousness of his misconduct and his AWOLs certainly warranted an undesirable discharge.

3.  If marital problems were hindering his ability to serve, he could have sought assistance from his chain of command to help rectify the problem.  The applicant's youth and immaturity is not sufficient for the Board to grant relief in this case.  Many young Soldiers served honorably.  There is no evidence that there were personality conflicts between the applicant and his commander.  The four statements submitted are noted; however, they were not sufficient to mitigate a properly issued discharge.  Therefore, he is not entitled to an upgrade to an honorable discharge or to a general discharge.

4.  His discharge was processed in accordance with the applicable regulations in effect at the time with no indication of any error which may have affected the rights of the applicant.

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

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 25 July 1991.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 24 July 1994.  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

___lds___  ____bje__  ___mjf__  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 J. Ellis_______
          CHAIRPERSON




INDEX

CASE ID
AR20060008425
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070201
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.