RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060011377 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Mark Manning

Chairperson

Mr. John Meixell

Member

Mr. Qawiy Sabree

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, that his general discharge be upgraded to honorable.

2.  The applicant states that the conditions [under] which he was discharged state that he could appeal after nine years and it has now been 23 years. 

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 26 February 1973.  The application submitted in this case is dated 6 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 was inducted on 15 January 1971.  He successfully completed basic combat training.  While in advanced individual training (AIT), on 24 March 1971, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 22 March 1971 to 24 March 1971.  His punishment consisted of restriction. 

4.  The applicant was awarded military occupational specialty 36K (wireman) upon completion of AIT. 

5.  On 17 July 1972, nonjudicial punishment was imposed against the applicant for being AWOL from 12 July 1972 to 17 July 1972.  His punishment consisted of a forfeiture of pay and extra duty. 

6.  On 26 January 1973, the applicant was convicted by a summary court-martial of being AWOL from 4 December 1972 to 8 January 1973.  He was sentenced to be reduced to E-3 and to forfeit $75 pay per month for 1 month.  On 26 January 1973, the convening authority approved the sentence. 
7.  On 26 February 1973, the applicant was released from active duty with a general discharge under the provisions of Army Regulation 635-200 for expiration term of service.  He had served 2 years and 1 day of creditable service with 42 days of lost time.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 2, in effect at the time, provided, in pertinent part, for the discharge or release from active duty upon termination of enlistment, period of induction, and other periods of active duty or active duty for training.  The regulation also states, in pertinent part, that the evaluation of an individual’s service and conduct will be based on his/her overall period of current service rather than any disqualifying entries in his Enlisted Qualification Record during a particular portion of such service.   

9.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. 

10.  Army Regulation 635-200, paragraph 3-7a, 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.     

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record of service included two nonjudicial punishments, one summary court-martial conviction, and 42 days of lost time.  As a result, his record of service 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 honorable discharge.

2.  Records show the applicant should have discovered the alleged injustice now under consideration on 26 February 1973; therefore, the time for the applicant to file a request for correction of any injustice expired on 25 February 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

MM____  __JM____  __QS____  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.




__Mark Manning________
          CHAIRPERSON




INDEX

CASE ID
AR20060011377
SUFFIX

RECON

DATE BOARDED
20070222
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19730226
DISCHARGE AUTHORITY
AR 635-200  
DISCHARGE REASON
Expiration term of service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.