RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060010205 


	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:


Mr. William F. Crain

Chairperson

Mr. Edward E. Montgomery

Member

Ms. Rea M. Nuppenau

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 to honorable and that the reason for his discharge be changed.

2.  The applicant states, in effect, that his wife was sick with a brain tumor at Buffalo Hospital where they took good care of her but he wanted to be close to her.  He states, in effect, traveling was impossible for her so he wanted to join the Army National Guard to get close to her but he was never contacted.

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 injustice which occurred on 19 September 1973, the date of his discharge from active duty.  The application submitted in this case was received on 21 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 records show that he entered active duty on 25 February 1972.  He completed basic combat training and advanced individual training, and was awarded the military occupational specialty 31M1O (Radio Relay and Carrier Attendant).  His highest grade held was private first class/pay grade E-3.

4.  He was absent without leave (AWOL) during the period 20 March 1973 to  
21 March 1973.  On 17 July 1973, he received Non-judicial Punishment (NJP) for failing to go his appointed place of duty.  He was also AWOL during the period
27 August 1973 to 30 August 1973.

5.  On 13 August 1973, he received notification that he was being considered for separation under the provisions of Army Regulation 635-200, Chapter 13 for unsuitability.  He was advised of the rights available to him and the effects of a 
discharge under honorable conditions.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.

6.  On 5 September 1973, his commander recommended that he be discharged. On 13 September 1973, the recommendation for separation was approved by the appropriate authority.

7.  On 19 September 1973, the applicant was given a general discharge from active duty for unsuitability, by reason of character and behavior disorder.  He had completed 1 year, 6 months, and 21 days of active service and accrued 4 days time lost.

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.

9.  Army Regulation 635-200 (Personnel Separations), Chapter 13 applied to separation for unfitness and unsuitability.  At that time, it provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his discharge be upgraded to honorable and that the reason for his discharge be changed.

2.  His discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would tend to jeopardize his rights.  The evidence provides sufficient basis for an under honorable conditions discharge for unsuitability.  The applicant's records show that his service was not satisfactory; therefore, he is not entitled to an honorable discharge.

3.  The applicant stated his wife was sick with a brain tumor at Buffalo Hospital where they took good care of her but he wanted to be close to her and traveling was impossible for her.  However, he has not submitted anything to verify this 
contention and, even if he had, this is not sufficient to mitigate his discharge.  As such, the applicant is not entitled to correction of his records to change his discharge to honorable or to change the reason for his discharge.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 September 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 18 September 1976.  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

___rmn__  ___eem__  ____wfc_  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.




_________William F. Crain__________
          CHAIRPERSON




INDEX

CASE ID
AR20060010205
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070308
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.