RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060011880


	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 his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states he was just 18 years old and only went AWOL (absent without leave) for 21 days.  He suggests his AWOL was due to the birth of his first child on 26 February 1976.  He adds the VA (Department of Veterans Affairs) has stopped his mental health treatment.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 1 June 1976.  The application submitted in this case is dated 11 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 born on 3 January 1957and enlisted in the Regular Army for 3 years on 9 October 1974 for training in the supply field and assignment to the 14th Engineer Battalion, Fort Ord, CA.  At enlistment he was 17 years and 9 months of age.

4.  Following Basic Combat Training at Fort Ord, the applicant was assigned to the 14th Engineer Battalion and given on-the-job training (OJT) in military occupational specialty (MOS) 76Y (Supply Specialist).

5.  The applicant's record at the 14th Engineer Battalion was extremely poor.  He received numerous counseling statements for a variety of military violations.  He was also AWOL for 21 days from 10 November 1975 through 30 November 1975, for 27 days from 23 December 1975 through 18 January 1976, and for 16 days from 19 April 1976 through 4 May 1976.

6.  As a result of his second AWOL, the applicant was placed in pretrial confinement from 28 January 1976 through 12 April 1976.  Court-martial charges were preferred against him and, on 19 March 1976, he was convicted by a special court-martial and sentenced to confinement at hard labor for 1 month and forfeiture of pay for 2 months.

7.  The record shows the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for twice failing to go to his place of duty on 18 February 1976 and on 24 February 1976.  He received a letter of reprimand.

8.  A criminal history report compiled by the Federal Bureau of Investigation (FBI) reveals the applicant was arrested by civil authorities twice for drunk driving (on 16 February 1975 and 20 September 1975) and once for burglary (on 21 January 1976).

9.  The applicant's discharge packet is not available; however, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 13, Army Regulation (AR) 635-200 for unfitness.  It also shows he had a total of 140 days of lost time due to AWOL and confinement.

10.  There is no reference to the applicant having been married while on active duty.  His enlistment contract shows he was single at the time of enlistment and there is no documentation in the record to change that status.

11.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.

12.  AR 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5 provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts.  When separation for unfitness was warranted, an UD was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was almost 18 years old when he enlisted for 3 years.  There is no indication he was any less mature than any other young Soldier who enlisted and successfully completed a term of enlistment.
2.  There is no indication the applicant was ever married during his active service.  His suggestion that he was AWOL due to the birth of his child is not persuasive.

3.  The applicant had 140 days of lost time, significantly more than the 21 days he admits to having been AWOL.  He also was frequently involved with civil authorities for drunk driving and burglary.  He was convicted by a special court-martial and has one NJP in his record.

4.  The Board presumes the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of his discharge is commensurate with his overall record of military service.

5.  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.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 June 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
30 May 1979.  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

__jea___  __swf___  __rsv___  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.



							James E. Anderholm
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011880
SUFFIX

RECON

DATE BOARDED
20070306
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19760601
DISCHARGE AUTHORITY
AR 635-200 C14
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0000
2.

3.

4.

5.

6.