RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060011457 


	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. Hubert Fry

Chairperson

Mr. William Crain

Member

Mr. Dale 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 that his general discharge be upgraded to honorable.

2.  The applicant states that he had a hard time when he came back from Vietnam and that it was hard to adjust after serving two years overseas.

3.  The applicant provides no additional evidence in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 24 February 1972.  The application submitted in this case is dated 4 August 1972.

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 on 20 March 1968 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 67A (aircraft maintenance crewman).  He arrived in Vietnam on 9 September 1968.  On 19 December 1969, he was honorably discharged for immediate reenlistment.  He reenlisted on 20 December 1969 for a period of 3 years.  He departed Vietnam on 22 April 1970.  

4.  On 12 January 1971, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 28 December 1970 to 
8 January 1971.  His punishment consisted of a forfeiture of pay (suspended) and extra duty.  On 2 March 1971, the suspended portion of the punishment was remitted.

5.  On 30 July 1971, nonjudicial punishment was imposed against the applicant for being AWOL from 26 June 1971 to 23 July 1971.  His punishment consisted of a reduction to E-4 and extra duty. 

6.  On 13 October 1971, a bar to reenlistment was imposed against the applicant. 

7.  Records show that nonjudicial punishment was imposed against the applicant on 25 January 1972 for being AWOL.  His punishment consisted of extra duty. 

8.  On 26 January 1972, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unsuitability.  He based his recommendation for separation on the applicant’s three nonjudicial punishments, numerous letters of indebtedness, below standard military bearing and conduct, and a civil charge of driving under the influence on 11 December 1971.    

9.  The applicant consulted with counsel, waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement on his own behalf.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  

10.  On 28 January 1972, the applicant underwent a mental status evaluation.  His behavior was rated as passive-aggressive and it was determined that there was no significant mental illness.

11.  On 17 February 1972, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

12.  Accordingly, the applicant was discharged on 24 February 1972 with a general discharge under the provisions of Army Regulation 635-212 for unsuitability (character and behavior disorders).  He had served a total of 
3 years, 9 months, and 4 days of creditable service with 58 days of lost time due to AWOL.  His DD Form 214 (Report of Transfer or Discharge) shows that he was AWOL from 13 October 1971 to 13 October 1971 and from 5 January 1972 to 24 January 1972.      

13.  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. 

14.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general or honorable discharge was considered appropriate.  

15.  Army Regulation 635-200, paragraph 3-7, 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.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his “adjustment” problems within established Army procedures.

2.  Since the applicant’s record of service included three nonjudicial punishments and 58 days of lost time, 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.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.    

4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 24 February 1972; therefore, the time for the applicant to file a request for correction of any injustice expired on 23 February 1975.  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

HF____  _WC_____  __DD____  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 Fry_______
          CHAIRPERSON




INDEX

CASE ID
AR20060011457
SUFFIX

RECON

DATE BOARDED
20070213
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19720224
DISCHARGE AUTHORITY
AR 635-212  
DISCHARGE REASON
Unsuitability
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.