RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060011767 


	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.

X
	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, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that when his undesirable discharge (UD) was upgraded by the Army Discharge Review Board (ADRB) on 14 February 1979, he believed it was upgraded to an HD, which he requests be accomplished at this time. 

3.  The applicant provides the following documents in support of his application:  Separation Documents (DD Forms 214); Application for the Review of Discharge from the Armed Forces of the United States (DD Form 293); Department of Veterans Affairs (VA) Appeal Decision (VA Form 4107); and Confidential Medical/Eye Examination Report.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 25 September 1975.  The application submitted in this case is dated 7 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 he enlisted in the Regular Army and entered active duty on 11 April 1972.  He was trained in and awarded military occupational specialty (MOS) 45K (Tank Turrent Repairman).  

4.  The applicant's record further shows that during his active duty tenure, he earned the National Defense Service Medal and Armed Forces Expeditionary Medal (Korea).  It also shows he was promoted to specialist four (SP4) on 
1 November 1973, and that this is the highest rank he held while serving on active duty. The record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  The applicant's disciplinary history includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate occasions and a 28 August 1975 Special 
Court-Martial (SPCM) conviction for being absent without leave (AWOL) from 
30 May through 29 July 1975. 

6.  On 11 September 1975, the unit commander notified the applicant that he intended to initiate separation action on him under the provisions of chapter 13, Army Regulation 635-200, by reason of unfitness.  The unit commander cited the applicant's disciplinary history as the basis for taking the action.

7.  On 18 September 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation, its effects, and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to have his case considered by a board of officers, his right to a personal appearance before a board of officers, and his right to consulting counsel.  He also elected not to submit a statement in his own behalf.

8.  On 24 September 1975, the separation authority approved the separation action and directed the applicant receive an UD.  On 25 September 1975, the applicant was separated accordingly.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 3 years, 2 months, and 5 days of active military service and that he had accrued 100 days of time lost due to AWOL.  It also shows he held the rank of private/E-1 at the time of his separation.  

9.  On 14 February 1979, the ADRB, after careful consideration of the applicant’s case, voted to upgrade the applicant's discharge to a GD and to change the authority and reason for separation based on current standards.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided for the separation of members for unfitness, for frequent involvement in incidents of a discreditable nature with civil and/or military authorities.  An UD was normally considered appropriate for members separated under these provisions.


11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  An under other than honorable conditions (UOTHC) discharge is normally appropriate for members separated under these provisions.  However, the separation authority may direct a GD or HD if such is merited by the Soldier’s overall record.  

12.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge to an HD was carefully considered.  However, there is an insufficient evidentiary basis to grant the requested relief.

2.  The evidence shows that the ADRB upgraded the applicant's discharge to a GD and changed the authority and reason for separation under current standards at the time.  However, the ADRB action did not constitute a finding that the applicant did not commit the misconduct upon which his separation was based, nor does it absolve him of this misconduct during the period in question.  

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal a disciplinary history that clearly diminished the quality of his overall record of service below that meriting a fully honorable discharge.  Therefore, it would not be appropriate to grant the requested relief.  


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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 14 February 1979, the date he exhausted administrative remedies through the ADRB.  Therefore, the time for him to file a request for correction of any error or injustice expired on 18 February 1982.  He failed to 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

___X_  __X__  __X__  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.




_____X____
          CHAIRPERSON




INDEX

CASE ID
AR20060011767
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/17
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
1975/09/25
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
Unfitness
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.