RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060011874 


	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. Gerard W. Schwartz

Acting Director

Mr. W. W. Osborn, Jr.

Analyst

The following members, a quorum, were present:


Mr. John P. Infante

Chairperson

Ms. Susan A. Powers

Member

Mr. Qawiy A. 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 that his undesirable discharge be changed to a general discharge. 

2.  The applicant states, in effect, that he had a cut on his arm.  He was taken to a German hospital.  The doctor made an "X" on his forehead and something was done to him.  He believes that the failure to timely file should be waived to correct the error so that he can use a United States hospital rather than a German one.  He contends that his arm was disabled before he entered the Army.

3.  The applicant provides no supporting documentation.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 14 February 1973, the date of the discharge.  The application submitted in this case is dated 10 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 enlisted and entered active duty on 3 April 1972.  He completed training as an infantryman and was posted to Germany.     

4.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice on six separate occasions for offenses of absence without leave, breaking restriction, being drunk and disorderly, destroying public property and dereliction of duty.  On 12 January 1973 charges were preferred for being disrespect towards a captain and a first lieutenant, disobedience, willful disobedience, breaking restriction, communicating a capitol threat and carrying a concealed weapon. 

5.  In the medical history that he provided for his separation physical examination the applicant reported that he had running ears, hearing loss, chronic or frequent colds, sinusitis, hay fever and a history of head injury.  The physician's elaboration of those entries indicates only that he had seasonal hay fever for which he received symptomatic treatment.  The applicant also indicated to the doctor that he had dropped out of school after the 8th grade but had earned a GED in the service.  The physical examination found him qualified for separation. 

6.  At a 1 February 1973 mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

7.  The chain of command recommended separation with an undesirable discharge and the separation authority approved the discharge.

8.  On 14 February 1973 the applicant was separated under the provisions of Army Regulation 635-200, chapter 10.  He had 10 months and 29 days of creditable service.

9.    Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

10.  There is no indication the applicant applied to the Army Discharge Review Board.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  In view of the applicant's numerous disciplinary infractions, it does not appear that the undesirable discharge was too severe.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

3.  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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 14 February 1973, the date of the discharge.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 13 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

_SAP___  _JPI_____  __QAS__  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.




___    John P. Infante______
          CHAIRPERSON


INDEX

CASE ID
AR20060011874
SUFFIX

RECON

DATE BOARDED
20060403
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19730201
DISCHARGE AUTHORITY
AR 635-200, Ch 10. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
A70.00
2.

3.

4.

5.

6.