RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060011354 


	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 his discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, he was shot at by German citizens because of an earlier incident between German citizens and military personnel.  The applicant describes an altercation he and his friends had with German citizens.  The applicant states that when he broke a police officer’s leg, he did not know the officer was undercover because he had no badge and was not in uniform.  The applicant states his discharge should be upgraded because he served during war time.

3.  The applicant provides no additional documentation or evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 December 1973, the date of his discharge.  The application submitted in this case is dated 28 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 show he enlisted on 29 September 1972 for a period of 4 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11B (light weapons infantryman).

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 18 January and 16 March 1973, for being absent from his organization, assault, and failure to obey a lawful order from a commissioned officer.

5.  On 1 May 1973, the applicant was assigned to Company C, 2nd Battalion, 36th Infantry in Germany.
6.  On 2 October 1973, the applicant accepted NJP under Article 15, UCMJ, for failure to go to appointed place of duty and absent from his appointed place of duty.

7.  On 10 September 1973, the applicant was convicted by a special court-martial (SPCM) of failure to obey a lawful order from a commissioned officer, wrongful appropriation of an armored personnel carrier, and assault.

8.  The applicant was counseled by his first sergeant on 2 and 10 October 1973 concerning his failure to be at his appointed place of duty, constant uniform violations, and general overall shabby appearance.

9.  On 12 October 1973, the applicant was counseled by his commander concerning his total disregard of military regulations.

10.  The applicant received a mental evaluation wherein the examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

11.  On 16 October 1973, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Chapter 13 of Army Regulation 635-200 due to unsuitability.

12.  The commander advised the applicant of his right to have his case considered by a board officers; to appear in person before a board of officers; to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge, and request his case be presented before a board of officers.

13.  The applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 13 of Army Regulation 635-200 for unsuitability.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant waived counsel and stated that he was not submitting statements in his own behalf.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.


14.  The applicant's commander recommended him for discharge under the provisions of Chapter 13 of Army	Regulation 635-200 due the applicant's apathy, disinterest, and failure to attempt to adjust to military life.  The commander requested a waiver of a rehabilitation transfer due to the applicant’s serious disciplinary problems.

15.  On 12 November 1973, the appropriate authority waived rehabilitative reassignment, approved the recommendation for discharge under the provisions of Chapter 13 of Army Regulation 635-200 due the applicant's apathy, disinterest and failure to attempt to adjust to military life, and directed that the applicant be furnished a General Discharge Certificate upon separation.

16.  On 3 December 1973, the applicant was discharged under the provisions of Chapter 13 of Army Regulation 635-200 due to apathy.   He had completed 
1 year, 2 months and 5 days of active service that was characterized as under honorable conditions.  

17.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statue of limitations.

18.  Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5b, then in effect, provides for discharge of individuals for unsuitability.  Among the reasons for unsuitability are apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively The regulation defined unsuitability as including frequent incidents of a discreditable nature with civil or military authorities.   

19.  Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he served 2 years during war time.  Based on the applicant’s date of enlistment and his date of discharge, he only served 1 year, 2 months, and 5 days of active service.  Although the applicant did serve during a “period of war,”,l the applicant was never assigned in or near an area that was entitled to “combat pay” (now known as imminent danger pay).  Therefore, these factors were not considered as mitigating in the determination of this case.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

4.  The applicant’s record of service shows he accepted NJP on three occasions and was convicted by a SPCM.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 December 1973, the date of his discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 December 1976.  However, 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___  __rsv___  ____swf__  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.




__________James E. Anderholm_____
          CHAIRPERSON




INDEX

CASE ID
AR20060011354
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070306
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.