RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011600 


	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 that his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was told his discharge would be changed to honorable.  The applicant also states that he would like to leave an honorable discharge certificate to his son. 

3.  The applicant did not provide additional documentary evidence in support of this application.    

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 19 May 1972, the date of his discharge from the Army.  The application submitted in this case is dated 1 August 2006 and received on
16 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.  On 17 December 1970, the applicant enlisted in the Regular Army for a period of three years.  He was trained in, awarded, and served in military occupational specialty (MOS) 72B (Communications Center Specialist).  

4.  The applicant attained the grade of private first class/E-3 and received the National Defense Service Medal.

5.  The applicant's records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated:  26 January 1971, for failing to go to chow formation; 
15 February 1972, for three specifications of failing to go to formation; 14 April 1972, for absence without leave (AWOL) for four days; and 26 April 1972, for disobeying a lawful order from the first sergeant and company commander.
6.  The applicant was also counseled by the first sergeant and unit commander on numerous occasions.  The unit commander submitted a statement in support of his decision to recommend the applicant for discharge.  He indicated that he had spent more than 20 hours counseling the applicant in the company of the first sergeant, platoon leader and platoon sergeant.  The applicant displayed a complete lack of interest in the Army and demonstrated a total disregard for military authority.

7.  On 2 May 1972, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-212 by reason of unsuitability, with a general, under honorable conditions discharge.  

8.  On 5 May 1972, the applicant waived his right to consult with legal counsel and voluntarily waived consideration of his case by an administration separation board.  He did not submit a statement in his own behalf.

9.  On 12 May 1972, the separating authority waived rehabilitation transfer and directed the applicant be discharged with a general, under honorable conditions discharge.

10.  On 19 May 1972, the applicant was discharged by reason of unsuitability after completing 1 year, 4 months, and 28 days of active military service.

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability.  A general, under honorable conditions discharge was normally considered appropriate for members separating under these provisions. 

12.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.



DISCUSSION AND CONCLUSIONS:

1.  The applicant received NJP on four occasions for numerous infractions of military discipline.  Before initiating action to separate the applicant, the command ensured the applicant was appropriately counseled about the deficiencies, which could lead to separation.  It is noted the command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier.  The evidence of record established that the applicant was afforded a reasonable opportunity to overcome noted deficiencies.  As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  

3.  The character of the applicant's discharge is commensurate with the applicant's overall record of military service.  As such, the quality of his service was not consistent with the Army's standard for acceptable personal conduct and performance of duty by military personnel.

4.  The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application requesting a change in discharge.  Changes may be warranted if it is determined that the characterization of service or the reason for discharge or both were improper or inequitable.   

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, there is no justification to change the characterization of the applicant's discharge.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 May 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
18 May 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

__mkp___  __lwr___  __reb___  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.



						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011600
SUFFIX

RECON

DATE BOARDED
20070315
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
19720519
DISCHARGE AUTHORITY
AR 635-212
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.4000
2.

3.

4.

5.

6.