RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060010436 


	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.


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	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 undesirable discharge be changed to a general under honorable conditions discharge.

2.  The applicant states that the type of discharge he received was too harsh for the circumstances.  He states he was not offered any treatment, only punishment.

3.  The applicant provides a supplemental letter; two letters of support; and documents from his service personnel record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 2 October 1974.  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 applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 31 August 1972 for a period of three years.  He completed basic combat training at Fort Leonard Wood, Missouri and advanced individual training at Fort Gordon, Georgia.  He was awarded military occupational specialty 36G (Manual Central Office Repairman). He was advanced to private first class on 22 March 1973.

4.  On 20 August 1973, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 19 July 1973 through 5 August 1973.  His punishment consisted of a reduction to private E-2; a forfeiture of $50.00 pay per month for 2 months; extra duty for 25 days; and 20 days of restriction to the company area and assigned place of duty during duty hours and billet area during off duty hours.

5.  On 10 September 1973, the applicant accepted nonjudicial punishment under Article 15, UCMJ for being absent from his place of duty on 31 August 1973 and was absent from his place of duty from 0730 hours on 2 September 1973 to 0800 hours on 3 September 1973.  His punishment consisted of a forfeiture of $150.00 pay per month for one month; extra duty for 20 days; and restriction to company area, assigned place of duty, and billet area.

6.  On 27 March 1974, the applicant accepted nonjudicial punishment under Article 15, UCMJ for being absent from his place of duty from 0900 hours on 21 March 1974 to 0850 hours on 22 March 1974.  His punishment consisted of a forfeiture of $50.00 pay and extra duty for 7 days.

7.  On 11 April 1974, the applicant accepted nonjuducial punishment under Article 15, UCMJ for failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of $84.00 and extra duty for 7 days.

8.  The applicant's discharge packet is not available.  However, his DD Form 214 (Report of Separation from the Armed Forces of the United States) shows 
he was discharged on 2 October 1974 under the provisions of Army Regulation 635-200, paragraph 13-5a(1) based on unfitness – frequent incidents of a discreditable nature with civil or military authorities with issuance of an undesirable discharge.  He completed 2 years and 7 days of active military service with 25 days of lost time due to AWOL.

9.  The applicant submitted a letter of support, dated 10 July 2006 from a former Air Force captain.  The former Air Force captain stated that he had known the applicant since 1976 and he soon became aware of his involvement with drugs and use of alcohol.  He stated that the applicant quit drinking in 2004 and he has had numerous contacts with him.  He described the applicant as intelligent, independent, and a valuable friend.  He recommended that the applicant’s discharge be upgraded to general or honorable.

10.  The applicant submitted a letter, dated 19 March 1981, from his former employer at the H.D. Hudson Manufacturing Company.  The individual stated that the applicant had been employed with this company since 15 October 1974 and had been a good employee with a very good absentee record.

11.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(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.

13.  Army Regulation 635-200, paragraph 3-7, 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of the applicant's administrative separation packet under the provisions of Army Regulation 635-200, paragraph 13-5a(1), it is presumed the proceedings were conducted in accordance with law and regulations applicable at the time.

2.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed issuance of an undesirable discharge based on his overall record.  

3.  The applicant's record of service shows he received four Articles 15 and was AWOL on three separate occasions for 25 days.  As a result, his record of service was not satisfactory and 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 upgrade.

4.  The applicant's statements were carefully reviewed.  However, he has provided no evidence other than his self-authored statements that the extenuating circumstances regarding his alcohol problems were the reasons he committed the offenses (AWOL) which led to his discharge.  He has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

5.  The letters of support provided by the applicant were not sufficiently mitigating to warrant relief in this case.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 October 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 1 October 1977.  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

x______  x______ x_____  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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060010436
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070222
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19741002
DISCHARGE AUTHORITY
AR635-200,paragraph 13-5a(1)
DISCHARGE REASON
Unfitness
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.