RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 6 February 2007
DOCKET NUMBER: AR20060010138
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.
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, in effect, that DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be changed to show his service as honorable vice under honorable conditions.
2. The applicant states he received an Article 15 (nonjudicial punishment, or NJP under Article 15, Uniform Code of Military Justice) for "unauthorized leave." He states he was punished with loss of leave time and those days designated as "bad time." He adds this punishment is not allowed under the UCMJ.
3. The applicant provides a copy of his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 4 June 1971. The application submitted in this case is dated 12 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 applicants failure to timely file.
3. The applicant enlisted in the Regular Army for 3 years on 24 May 1968. His record shows a history of disciplinary infractions. The applicant received five NJP's: three for absent without leave (AWOL) on 7 July 1969, during 31 July-3 August 1969, and 21-31 December 1970; one for disobeying the lawful order of a noncommissioned officer; and one for violating a lawful general regulation. In addition, the record shows he was arrested by civil authorities for aggravated assault on 4 May 1971 and that he was counseled for cashing a check with insufficient funds and driving with expired license plates.
4. The applicant's chain of command recommended he be separated for unsuitability under the provisions of Army Regulation 635-212. The recommendation was not supported by a mental status evaluation; therefore, he
was processed for separation under chapter 2, Army Regulation 635-200. A GD was requested because of his history of disciplinary violations. The recommendation was approved.
5. The applicant was released from active duty (REFRAD) on 4 June 1971, and transferred to the US Army Reserve (USAR). He had 2 years, 11 months, and 29 days of creditable service, and 13 days of lost time due to AWOL. His DD Form 214 shows the character of his service was "under honorable conditions."
6. Letter Orders Number 11-1331424, Office of The Adjutant General, US Army Reserve Components Personnel and Administration Center (RCPAC), St. Louis, MO, dated 12 November 1974, honorably discharged the applicant effective 2 June 1974.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 2 of the regulation then in effect provided for the separation of Soldiers based on expiration of terms of service.
8. There is no record the applicant petitioned the Army Discharge Review Board to change the characterization of his DD Form 214 within that board's 15-year statute of limitations.
DISCUSSION AND CONCLUSIONS:
1. The applicant's record contains numerous examples of disciplinary violations and punishments under Article 15, Uniform Code of Military Justice, to include three periods of AWOL.
2. Although the applicant was REFRAD for length of service under the provisions of chapter 2, Army Regulation 635-200, his character of service was determined to be "under honorable conditions" as opposed to fully honorable.
3. The applicants separation proceedings were conducted in accordance with law and regulations applicable at the time. The character of his REFRAD was commensurate with his overall record of military service.
4. Following his separation from active duty, the applicant was transferred to the USAR Standby Reserve for completion of his obligation. On 2 June 1974, he received an Honorable Discharge. This action by the US Army RCPAC constitutes the applicant's discharge; in effect, he has an honorable discharge.
5. Records show the applicant should have discovered the alleged error or injustice now under consideration on 4 June 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 3 June 1974. 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
__jea___ __jlp___ __eem___ 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.
3. A copy of the applicant's discharge order is provided to him showing that he received an honorable discharge on 2 June 1974.
James E. Anderholm
______________________
CHAIRPERSON
INDEX
CASE ID
AR20060010138
SUFFIX
RECON
DATE BOARDED
20070206
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19710604
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
110.0000
2.
3.
4.
5.
6.
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