RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060009910 


	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. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. John T. Meixell

Member

Mr. Qawiy A. Sabree

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, under honorable conditions discharge be upgraded to honorable and that his narrative reason for discharge be changed.

2.  The applicant states, in effect, that his type of discharge does not accurately reflect his true character. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 8 March 1970, the date of his discharge from the Army.  The application submitted in this case is dated 5 July 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 are not available to the Board for review.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.  

4.  The applicant's DD Form 214 shows he served in the Regular Army from
27 January 1969 through 8 March 1970.  He attained the grade of private first class/E-3 and received the National Defense Service Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal.  

5.  The applicant was discharged under the provisions of Army Regulation 635-212, by reason of unsuitability and assigned a Separation Designator Code of "264."  This means he was separated for unsuitability – character and behavior disorder.  He was credited with 1 year, 1 month, and 11 days of active military service.  His service was characterized as general, under honorable conditions.

6.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability.  A general, under honorable conditions discharge was normally considered appropriate for members separating under these provisions. 

7.  Army Regulation 635-200, 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.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records were not available for the Board's review.  The only document available for the Board's review was his DD Form 214.  This document shows the applicant was separated under the provisions of Army Regulation 635-212, by reason of unsuitability with a character and behavior disorder.

2.  Although the applicant contends that his type of discharge did not represent his true character, he did not submit any evidence in support of his contention.  In the absence of evidence to the contrary, regularity is presumed in the applicant's discharge process and it is presumed that his type of discharge was appropriate.

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 8 March 1970; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
7 March 1973.  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

__mdm___  __jtm___  __qas___  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.



							Mark D. Manning
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060009910
SUFFIX

RECON

DATE BOARDED
20070222
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19700308
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.8600
2.

3.

4.

5.

6.