RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060011210 


	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

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr.

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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, in effect, removal of the lost time entry and the Separation Program Designator (SPD) code from his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states that he "just wants to know the real reason he was separated from the Army." 

3.  The applicant provided a self-authored statement in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 28 July 1978, the date of his discharge.  The application submitted in this case is dated 1 August 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 record shows that he enlisted in the Regular Army and entered active duty on 16 February 1977.  He was trained in, awarded, and served in military occupational specialty (MOS) 13B (Ammunition Handler) and the highest rank he attained while serving on active duty was private first class/pay grade E-3.  

4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  The record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 7 June 1978 through on or about 14 June 1978.

6.  On 11 July 1978, the applicant’s unit commander advised the applicant that he intended to recommend his separation from the Army under the provisions of paragraph 5-31 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), for attempted suicide, continual depression, lack of responsiveness, unsightly appearance, failure to groom, apathetic attitude, and unwillingness to improve or respond to positive guidance. 

7.  On 11 July 1978, the applicant acknowledged that he was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  

8.  On 14 July 1978 June 1978, the separation authority directed the applicant’s separation under the provisions of paragraph 5-31 of Army Regulation 635-200 and directed that he receive an Honorable  Discharge Certificate.  On 28 July 1978, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 1 year, 5 months, and 5 days of creditable active military service and 8 days lost due to AWOL.  

9.  Army Regulation 635-200 sets for the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, set for the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government.  Paragraph 5-31 provided the policies and procedures for separating enlisted personnel under the Army's Expeditious Discharge Program.

10.  Army Regulation 635-5-1 (Separation Program Designators), in effect at the time of the applicant's discharge shows that appropriate SPD code for separation under the provisions of paragraph 5-31 of Army Regulation 635-200 was JGH. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 incorrectly shows that he incurred 8 days of lost time was carefully considered and determined to be without merit.  The applicant's records clearly show that he accepted punishment under Article 15 of the UCMJ for being AWOL during the period of on or about 7 June 1978 through on or about 14 June 1978.  Therefore, there is no basis to amend this entry on the applicant's separation document.




2.  The applicant's contention that the SPD code on his separation document was also carefully considered and determined to be without merit.  The regulation in effect at the time of the applicant's discharged shows that the SPD code JGH was the proper code for those individuals separated under the provisions of chapter 5-31 of Army Regulation 635-200.  Therefore, the applicant's records are correct as currently constituted.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 July 1978; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 27 July 1981.  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

__DED___  _WFC__  _HOF___  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.



__Hubert O. Fry, Jr.____
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.